Research On The Protection Of Victim's Procedural Rights In Discretionary Non-prosecution

Basing upon the value awareness of procedure diversion, modern countries under the rule of law endow the procuratorial organizations with certain right of discretion. Reflected in our country, it focuses on the discretional non-prosecution. The procuratorial organs may decide not to prosecute if guilt is so light that they are not deserved the penalties. However, all of the unrestrained powers would inevitably lead to corruption and power abuse. If the discretional non-prosecution power is abused, the relationships among the victim, the suspect and the prosecution will be strained, and impede the realization of the aspirations of victims. In order to prevent the discretional non-prosecution power abuse, the law restrains the suit condition, and specifies the making process, the informing obligation and the victim's remedy way. However, looking from the legislative and judicial practice, the discretional non-prosecution in terms of protecting victim's procedural rights has many problems. How to learn from the advanced foreign experience and improve the victim's protection measures based on the reality of China's is the focal point of this paper. The paper is comprised of four parts:The first part is about the basic theory of the protection of victim's procedural rights in discretionary non-prosecution. First, the concept of victim in the sense of discretionary non-prosecution is clarified; later, the theoretical support and the necessity of the protection towards the victims under current circumstances are analyzed. That is, this part proves the necessity of protecting victim's procedural rights in discretionary non-prosecution, from the perspectives of history and current circumstances.In the second part, the situation and shortcoming on the protection of victim's procedural rights in discretionary non-prosecution is studied. This part puts forward the defects of discretionary non-prosecution from legislative and judicial aspects. Focusing on explain the problems of victim's participation right. Only by fully recognizing the problems and the situation can the effective solutions be proposed.The third part analyzes the extra-territorial model study on the protection of victim's procedural rights in discretionary non-prosecution. The application scope of the discretionary non-prosecution power is wide. In case that the discretional non-prosecution power of procuratorial organs would damage the victim's legitimate rights and interests, the countries have provided a viable remedy model for the victim, such as informing reason in decision, victim-offender reconciliation, the deferred prosecution, the victim's state compensation system, the mandatory prosecution and the procuratorial committee. By observing the foreign law, hopefully it would offer reference on the victim's protection in.The fourth part is devoted to the suggestions on the protection of victim's procedural rights in discretionary non-prosecution. For the problems mentioned, we can integrate current domestic study and learn from foreign law. The following methods should be practiced to cover the victim's protection shortage in discretionary non-prosecution:embodying the decision of discretionary non-prosecution can ensure the victim's right to know; change non-prosecution hearing system to victim-offender reconciliation so that the victim can be actually criminal procedure litigant; generous application of discretionary non-prosecution from the legislative and prosecutorial system can reduce the case oppressiveness; legislation of Conditional Non-prosecution can guarantee the prompt compensation for victim; establishing the Victim's State Compensation System can highlight the national care about victim; promoting the victim's corresponding remedy can reflect the idea that right restricts power; promoting Corresponding Social Helping can protect victim's rights effectively.