Research On Non-prosecution System

At present, there exists the provision on non-prosecution or the similar in the law of most countries and also relevant provisions in international principles, China is of no exception and there exist relevant provisions on non-prosecution in criminal procedure law. Nowadays, the power to terminate criminal procedure and decide not to prosecute by procuratorial organs has been universally recognized in theory, system and judicial practice. However, with the application of non-prosecution system to judicial practice, the deficiencies and flaws of such system have been gradually exposed in legislation and judicial practice. Therefore, it is necessary to make an overall reflection on non-prosecution system.The present paper begins with historical evolution of non-prosecution system in China and cards the ideological origins from which non-prosecution system in China arises, in which the legal thoughts of temper justice with mercy in ancient China and the criminal policy of treatment with discrimination, and division and demonization in the People's Republic of China have an effect on non-prosecution system. After the People's Republic of China was founded, non-prosecution system was established at the systemic level. With the development in several decades, especially the revision of the criminal procedure law in 1996, the system of exemption from prosecution was cancelled and non-prosecution range was enlarged, which reformed and improved non-prosecution system. In the meantime, non-prosecution system has its unique value in application process, that is, non-prosecution system has the value of economic interests of criminal procedure, conforms with the criminal policy of punishment specification, and is conducive to protecting the lawful rights and interests of the parties concerned. In order to broaden horizon and give play to comparative advantages, the author makes analysis of the non-prosecution system of the major countries in the two legal systems and in the meantime makes deep discussion into the similarities and differences of the non-prosecution system of the major countries in the two legal systems from such aspects as cultural backgrounds, litigation thoughts and litigation mechanism.Then, the present paper makes analysis of the problems of non-prosecution system in China at legislation level and judicial practice level, puts forward the problems of three kinds of non-prosecution categories and discusses the flaws in the work procedure and restrictive mechanism of non-prosecution system. In the meantime, on the basis of referring to the successful experience of non-prosecution system in foreign countries and in combination of the situation in China, the present paper puts forward the specific conception to improve the non-prosecution system in China, including:to enlarge the application range of absolute non-prosecution, incorporating the situation in which the suspect has no criminal act or criminal fact is not committed by the suspect at the state of examination of the case for prosecution into the application range of absolute non-prosecution; to improve non-prosecution with doubts, where evidence is insufficient though examination, which fails to conform with prosecution conditions, and through supplementary investigation the case still fails to conform with prosecution conditions, non-prosecution decision "shall" be made, rather than non-prosecution decision "may" be made provided by current legislation; to reform relative non-prosecution, to enlarge the application range of relative non-prosecution in an appropriately way and take public interests into consideration; to set up the conditional non-prosecution system, as for some suspects who shall be responsible for criminal punishment, to add an observation period between prosecution and non-prosecution, so as to have suspects observed and corrected in the observation period and on the expiration of such observation period, relative non-prosecution decision may be made in accordance with law for the suspects who conforms with the conditions; to simplify the examination and decision procedure of non-prosecution and to establish and improve open examination system of non-prosecution; and to intensify the restriction on the power of non-prosecution by procuratorial organs.