Discuss The Construction Of Reprieve Prosecution System

The system of prosecution suspension is one of the reflection of the Doctrine of Prosecuting Discretion. The Doctrine of Prosecuting Discretion is also called prosecution rationalism, an opposite concept of the Doctrine of legal Prosecution, means the prosecutor has the right to decide whether the prosecuting is to be held or not in a criminal case in which the suspicion to the suspect is reasonable and the prosecuting conditions are all ready. The Doctrine of legal prosecution is also called prosecution legalism, which means prosecutor can do noting but to prosecute when the corpus delicti is clear. As the reflection of the Doctrine of Prosecuting Discretion, the system of prosecution suspension gives the People's Procuratorate Discretion to decide whether bringing a lawsuit against someone or not according to per particular case. There are only three systems which are statutory non-prosecution, evidence insufficient non-prosecution and conditional non-prosecution that are prescribed in our existing criminal procedure law. Though the system of prosecution suspension has not yet been written into criminal procedure law, it has been applied by many Procuratorial organs at the grass-roots level in practice and social effect has turned out to be satisfying. On the basis of reviewing the existing set and its effect of the system of prosecution suspension in Japan and Germany, combining with the trial situation in our country, this treatise attempts to reveal its theoretical basis, value and functions by analyzing its essence and characteristics. By analyzing its background of origin, borrowing the practice of legislation and justice in Japan and Germany, the paper also discusses the feasibility and rationality of the construction of the system of prosecution suspension in our country. In constructing a system of prosecution suspension in conformity with Chinese characteristics, the paper combines the characteristics of our criminal procedure law, lawsuit philosophy and justice practice, and also, absorbs the positive and beneficial factors of foreign systems.This paper consists of foreword, text and conclusion. Chapter One is a foreword in which the author summarizes the debates among specialists upon whether or not the system of prosecution suspension should be established. It includes four parts: First is the concept of prosecution suspension, Second is the comparison of some other names of prosecution suspension and the author also express her attitude towards this debates. Third, on the sphere of application, the author summarizes some essential characteristics on the basis of the comparison between prosecution suspension and comparative non-prosecution. At the last part, the author shows her suggestions for the rationality and feasibility of the structure of the system of prosecution suspension. Section One in Chapter Two reviews the origin and development of the system of prosecution suspension from it's origin in the Meiji era to it's expression in existing Japan criminal procedure law now, from theory of strict legal prosecution to the wide use of the Doctrine of Prosecuting Discretion in Germany. Particularly, about it's background of origin, operating mechanism and effect in Japan, Germany, America and Taiwan area. Section two, on the base of expatiating the concept and characteristics of prosecution suspension and the system of prosecution suspension, the author differentiates among several related concepts such as prosecute system, prosecute immunity and conditional non-prosecution. The author particularly makes a comparative analysis of the difference between prosecution suspension and comparative non-prosecution. Chapter three reveals the theoretical basis of the system of prosecution suspension and discusses it's rationality in the views of the Theory of Right of Prosecution, the Theory of Penalty Aim, Humble Spirit of Criminal law and the Theory of Individuate Penalty. Chapter Four theoretically analyzes the functions of the system of prosecution suspension, aiming to explain the justifiability of the system. Chapter Five summarizes the frame of the system of prosecution suspension, including it's sphere of application, condition of application, period of prosecution suspension and proviso, as well as the supervision and legal consequence of the decision for prosecution suspension according to the existing rules, mode and the effect in country like Japan and Germany. Chapter Six points out the development and existing problems of the system of prosecution suspension in China, and then, constructs a system of prosecution suspension in Conformity with the National Conditions. At present, the operation of prosecution suspension by Procuratorial organs has no foundation in law, and without unified criterion, every Procuratorial organ has different methods and rules. Thus, in legislation design, the author emphasizes the function of the system of prosecution suspension in restricting and supervising procuratorial organs' discretionary power. Chapter Seven is the conclusion, summarizes the paper's opinions, and points out the related problems need to be discussed.