Study On The System Of Returning Public Prosecution

System of prosecution withdrawal is based on extensive theoretical basis, as a consequence, it is considered to be a necessary and widely used system in modern legal nation. However, the system of prosecution withdrawal has been thrown into an awkward dilemma. On the one hand, its legal status has not been confirmed for a long time —criminal procedure law is always leaving it out in the revising. On the other hand, the system is widely welcomed in judicial practices—indeed there are cases in which it was abused.Prosecution withdrawal refers to abusing of prosecution withdrawal power and infringement to judicial power and rights of the defendant and the victim. In consequence, country in which the system runs, the power is always strictly limited. The withdrawal application or the second prosecution power may be limited, and some countries set restriction on both of the two sides. In our country, however, system of prosecution withdrawal has not been confirmed by criminal procedure law. As a result, different department makes judicial interpretation working each for itself. This kind arrogation make it ambiguous that when and how to run the power of withdrawal and the effect of prosecution withdrawal. The conflict between the judicial interpretation make it worse.System of prosecution withdrawal has been abused as a "system in pocket". One of the manifestation is prosecution withdrawing taking place of verdict of innocence. The mixing application of prosecution withdrawing and trial postpone makes the judicial practice more chaotic. There are reasons for current situation. Power of prosecution withdrawal is not restricted while rights of participating in procedure is left in the basket. In addition, the ossified evaluation system for judges and procurators plays an important part in the situation.To keep or to abolish the system of prosecution withdrawal is gradually getting the attention of theorists. With the argument getting more and more fierce, the future of the system remains problematic. In order to make the system existing and steadily working for judicial justice and human right, the trouble situation must be reformed. Firstly, the legal status of the system must be confirmed by criminal procedure law. Secondly, we must make it clear that the time of withdrawal application, the effect of prosecution and the scope of application. It is also necessary and important smoothening the relation between the law and judicial interpretation for the system regulating. To solve the problem in the judicial practice, we must change the evaluation system for judges and procurators, reinforce the check and supervision on the withdrawal power and distinguish the application of trial postponement from prosecution withdrawal. On the whole, there is a long road ahead to the maturity of system of prosecution withdrawal.