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Study On The Expansion And Restriction Of The Prosecutor's Discretion Power

Posted on:2011-10-25Degree:MasterType:Thesis
Country:ChinaCandidate:L L ZhengFull Text:PDF
GTID:2166360305972667Subject:Procedural Law
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The prosecutor's discretion plays an important role in the realization of the procedural efficiency and case justice. As a product of the development of modern criminal justice; prosecutor's discretion hasn't played its due role in China. Chinese procurator's power has the characteristics of administration and judicial power. This paper first analyzes the relationship between prosecutor's independence and procurator's power integration. In view of this, this article makes a systematic study about the prosecutor's discretion from the following aspects. Generally it includes the following six aspects:The first part mainly gives a brief introduction about the basic theory of prosecutor's discretion, including its basic meaning, existence value and the basic content.The second part investigates the development history of prosecutor's discretion in China in order to analyze the status and shortcomings of prosecutor's discretion. Our country's prosecutor's discretionary power is very limited and the application scope is very narrow. Besides, the supervision mechanism is very intensive. All these aspects are harmful to the realization of the prosecutor's discretion.In recent years, with the rising crime rate and a serious backlog of criminal cases, foreign prosecutor's discretion has been enlarged. The third part discusses necessity and feasibility to expand the prosecutor's discretion in China. First, the expansion of prosecutorial discretion is in line with criminal policy of the light punishment. In addition, the revised Criminal Procedure Law in 1996 introduced reasonable factors of the adversarial litigation which had provided good condition for the expansion of prosecutorial discretion.The forth part mainly gives specific suggestion about the expanding of prosecutor's discretion, such as expanding the relatively non-prosecution power, clarifying the effect of non-prosecution establishing Chinese-style plea bargaining, etc. The prosecution delay system should be set up. The prosecution delay system has provided its application conditions and test period, which will make the prosecutors make careful decision. From the current situation of China's justice, plea bargaining can be limited to three cases:the streamlined proceeding cases, juvenile cases, doubtful cases.Power subject to constraints is an important symbol in the country ruled by law. While expanding the prosecutor's discretion, an effective constraint should be put forward. Partâ…¤focuses on the improvement of restraint mechanisms. On one hand the restraint mechanisms can effectively prevent the abuse of discretion; on the other hand, it can promote more efficient and convenient exercise of the Prosecutor's discretion.Partâ…¥generally introduces the prosecutorial discretion principles such as legality principle, the principle of rationality. Hearing procedures can be put forward in order to increase the transparency of decision process. Besides the prosecutor's discretion should be constrained in terms of reconstructing China's coercive measures and improving the non-prosecution system,...
Keywords/Search Tags:discretion power, plea bargaining, prosecution delay, hearing system
PDF Full Text Request
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