Rational Consideration On Relative Non-prosecution Discretion System

The text mainly investigated three aspects: the procurators'internal independence, the common benefits standard and the control mechanism of relative non-prosecution discretion system. The whole content is almost around these aspects.Firstly, the author investigated the lawmaking and judicatory's present situation and the problems which our country's judicatory faces, carrying on a legal theory critique to the system. The author considered that the legal indictment doctrine in our country is still the predominant principle in prosecution practice. The contradiction between procurators'relative independence and the procuratorate integration has not been dissolved reasonably. The objective and fair principle has not been carried out effectively. The concrete rules of public benefits have not got full embodiment. The author generalized the problems which exist in the relative non-prosecution discretion system. Low criminal non-indictment rate in our country contributed to these aspects. The public prosecution principle does one thing and neglects another. The subject of non-prosecution lacks vitality. The objective and fair responsibility occurs to tilt. The concrete rules on public benefits lack. There are still other reasons on the low rate. Secondly, the author investigated the relative non-prosecution discretion systems of Britain, USA, German and Japan to look for reference, focusing on procurators'internal independence, the extension of relative non-prosecution discretion, public benefits principle and the control mechanism of relative non-prosecution discretion system, etc. Thirdly, for the sake of analyzing relative non-prosecution discretion system deeply, the author has done legal theory research, inducing the characters of relative non-prosecutor discretion system and stating its theoretical base. At last, the author did some research on the obligation and perfection of relative non-prosecution discretion system. We should perfect the principles of this system, carrying through the legal indictment doctrine as a main principle and the appropriate indictment as an assistant principle, keeping the procurators'relative independence and procuratorate integration in harmony, assisting the principle of public benefits, objective and fair. The author has done some research on how to perfect the relative non-prosecution discretion system, focusing on the subject and range of relative non-prosecution discretion system and establishing conditional non-prosecution, etc. In terms of perfecting the control mechanism, the main problem is the control from superior procuratorates and courts. As to the procuratorate, the rules restriction on non-prosecution should be the regulation and control beforehand. The control of single case needs the procurators'internal independence. The court control mainly gives courts the power of maintaining or cancelling the procuratorate's non-prosecution decisions. The basic standard of this power should be whether the prosecutors carry through the public benefits or not.In a word, in order to exert the positive effect of relative non-prosecution discretion system, make the non-prosecution work smoothly and enhance the criminal non-prosecution rate, we should set up and operate the relative non-prosecution discretion system appropriately, reasonably and legitimately, considering the relative non-prosecution discretion system as a systematic integration.