Research On The Prosecutorial Discretion

The basic mission of the criminal law is preventing the human rights of the litigants from the invasions of the criminal law departments without reasons and inappropriate invasions of the criminal law departments, especially the human rights of the suspects and the accused. However, the complexity and the abundance of the social activities also come to a decision that the ideal and actualities of any law has to stay certain space for the judicial officers, the prosecutorial discretion of the public prosecutor comes into being under this premise exactly. Currently, our country is being in the transformation stage of the socialistic market economy, the justice source of the nation is not satisfied for the demand of the judicial activity, so the legal procedure should contract the litigation cost as far as possible, then attaining the biggest litigation performance. The prosecutorial discretion just meet the request enhance the efficiency of the proceedings. However, the prosecutorial discretion of our nation which is not perfect affecting the rate to the indictment in the judicatory practices. Therefore, we should do research hard for how to perfect the prosecutorial discretion and how to exert the value that it should have in judicial process.This article takes how to set up and perfect the prosecutorial discretion of our nation as the core, divided into five chapters:Chapterâ… The general theories of the prosecutorial discretion. It is a power that the public prosecutor decides whether to indict an offender or not according to the fact of the case and the demand of the law in the criminal procedure. It is according to the considerations of the penalty principle changes in modern society, public benefits and the demand of the litigation economy values. The characters of it are validity, having the procedure and the entity, be subjected to the check and supervision. Then it has various ways to operate.Chapterâ…¡The value evaluation of the prosecutorial discretion. The prosecution discretion comes directly from the Code of Criminal Procedure in the prosecution of cheaper, adapting to the modern concept of the penal code, stressing the individual penalties. And advocate non-criminal methods to deal with crime, making the trial process which should not enter the case at the right time to terminate. Shortening the time for suit, saving litigation resources, it will be good for the realization of the litigation's economic value. The prosecutorial discretion has become more and more important nowadays. It has realized that it is impossible to expel the artificial discretion in the criminal procedure. The prosecutorial discretion is good at realizing individual justness, enhancing the efficiency of the proceedings and guaranteeing the rights of the suspects.Chapterâ…¢The comparison of the prosecutorial discretion in different countries. We found that according to the situation of its own country, every country has established the scope and the restriction of the prosecutorial discretion. However, with the differences lying in the law culture, the law tradition and the litigation mode of all countries, there are so many differences between the continental law system and the Anglo-American law system, the adoptions cope of the prosecutorial discretion the Anglo-American law system is larger and has more methods to choose, the continental law system stress to lay particular emphasis on the strict restriction of the prosecution decision, while the Anglo-American law system have established supervision mechanism to the decision of abandoning prosecution. The difference in the pattern of executing the discretion is that in the countries of Anglo-American law system, the scope of prosecutorial discretion is comparatively wide and the pattern of execution is comparatively flexible. Contrary to the Anglo-American law system, the prosecutor in the countries of continental law system executes prosecutorial discretion comparatively stiffly. Currently, our country just in exit and paths that looks for the reform actively, the two greatest methods department is suing to cut to measure the power theoretically of differences, to the innovator of the our country, have the important theories value and draw lessons from the meaning.Chapterâ…£The prosecution decision of our country. Currently, the current code of criminal court and judicatories explained to rule in our country have checked the prosecution decision to consider settling not to sue the power, changing to sue the power, annexing to sue the power and withdrawing to sue the power. At the same time, there are many different supervision mechanisms of the prosecution decision in our country. Then we all know there are a lot of problems in the power system. On the one hand, in the system rule there are some shortages. Its application pattern is single, its application scope is too narrow. On the other hand, the operation of the power in our country has some problems. These problems not only should be not benefit for developing, but also may result in power abuse in the fulfillment, hurting the people fair to the judicatory of trust, obstructing the step of the judicial system's reformations in our country.Chapterâ…¤Establishing the system on prosecutorial discretion in China. Firstly, we should clear the principles of the prosecutorial discretion, such as the principle of the law, stability principles and the principle of public welfare. According to the principles, the prosecutorial discretion will be more rationality. Secondly, we should extend its applying scope. We should give more choices to the public prosecutor to exercise the prosecutorial discretion. Thirdly, we need to perfect our nation's supervision mechanism of the prosecutorial discretion. Fourthly, sound discretion of the prosecution.The prosecutorial discretion will play a vital role in criminal proceedings as an important procedures, Its meaning is according with the meanings of our socialism harmonious. In the proceeding of perfecting the prosecutorial discretion, we should establish the power on our reality, focus on resolving social conflicts, exploring the inherent quality of the prosecution. And we should work hard to achieve the equity and order, expecting to protect human rights furthest, promoting the society stable and enforcing the justness of the law. At the end, we will carry out fair justice of the whole society.