Research On The Non-prosecution Discretion Restriction System

The non-prosecution discretion is the core of the prosecutor's discretion. The performance of the non-prosecution discretion will stop the criminal lawsuit and impacts the parties'rights and the judicial authority. With the expansion and exchangeability of the power, non-prosecution has the danger of abuse. With the development of the criminal policies of the non-crime, the lighter punishment, the Criminal Policy of "Combination of Mercy and Strictness in China, it is the trend of the criminal that the procedure non-prosecution enlarges gradually. Therefore, a scientific and rational non-prosecution discretion restriction system is the necessary conditions to guarantee the right performance of the discretion.Therefore, the research on the non-prosecution discretion restriction system is a very practical significance of the topic. The paper tries to be addressed on two facets. First of all, from a legal level, it analyses the legal base and the realistic foundation of the non-prosecution discretion restriction system from the analyze of characteristic and abuse shapes of non-prosecution discretion. Then, with Chinese present legislation and the question, studying for overseas advanced idea and method, we look for the concrete measure to improve the non-prosecution discretion restriction system of our country. We seek the balance point between fairy and the efficiency, fully exercise and rational control of the abuse of non-prosecution discretion.The content is composed of four parts:Firstly, it outlines mainly the basic theory of the non-prosecution discretion including it's definition, the characteristic and the legal reason to give the prosecutor non-prosecution discretion, and the regulation of our country about it.Secondly, it introduces the basic theory of the non-prosecution discretion restriction system as well as our country present legislation. Starting with the abuse and the harm embarks of the non-prosecution direction, according to the power restriction introduced does not sue decides after deliberation the power restriction, legal surveillance, right procedure and the difference of the people, we analyze the legal base of the non-prosecution direction restriction system. This part is the full text argument foundation, embarks the discussion from the power characteristic to research the positive significance of the system.Thirdly, it makes a very detailed comparative investigation into the non-prosecution direction restriction system of the law-developed countries in the world. And it introduces and analyses the theories about judicial review system, internal restriction mechanism of prosecutor.Fourthly, it analyses the current system in our country and proposes some suggestions to perfect the non-prosecution direction restriction system. By comparison with the legislation practice of the law-developed countries in the world, the defect of our country mainly lies in the imperfect method of restriction, unbalance of the degree of restriction. It is because the doctrine of opportunity in public prosecution has not been fully realized and the research of the law theory is very feeble. But the most important reason lies in the notion of our traditional law culture.We must follow the Criminal Policy of Combination of Mercy and Strictness and fully take the doctrine of opportunity in public prosecution to the criminal procedure. At the same time, we should obey the principle of efficiency, the value balance, the judicial democracy to perfect the non-prosecution direction restriction system from substantive and procedural level. In the process of using the non-prosecution direction, we should strong the obedience of the stipulation of non-prosecution direction and cancel the rate control of non-prosecution direction to realize the revolution of prosecutor's inside restriction. At last, we should learn from the experiences of Japanese to improve the people supervisor system in our country.