Deferred Prosecution System

The question of prosecution delay has been caused extensive dispute in our country in recent years. This paper, which can be divided into seven parts, expounds the system of prosecution delay from discussing the legitimate reason of the existence of this system in different countries and analyzing the necessity and feasibility of adopting this system in China.In the first part, the author poses the question of prosecution delay. The second part is mainly about the definition of this system and its nature which is discretion owned by the prosecutor when he or she is reviewing the prosecution. To make it clearer, the author furthers her idea from comparing this system to the system of no-prosecution, probation and free-prosecution. The theoretical basis of this system is clarified from two levels in the third part which is the most important part in this paper. The emergence of the system of prosecution delay is to fulfill the needs of pursuing the value of efficiency under the pressure of more and more serious criminal situation. Though the legal economics provides more systematical theoretical basis for highlighting the value of efficiency and developing the system of prosecution delay, the author argues that the value of justness cannot be neglected. Firstly, from the theory of the right of public prosecution, this right is not just a sub-concept of the right of action. The fulfillment and adjustment of the right of public prosecution which is an active state power, must be accorded with the need for maintaining good order of a country and the interest of the ruling class. So as a concentrated expression of the right of public prosecution, the right to delay the prosecution is also based on the state criminal policy and public prosecution policy. Secondly, from the development of the punishment theory, the prosecution delay is accompanied by the trend of the transfer from the theory ofretributive punishment to the theory of purposive punishment. In the forth part, the author focus her point on the value of the system of prosecution delay. She explains that on one hand, the system manifests the value of efficient in the criminal procedure and can help the suspected return to society and predict the crime; on the other hand, the system reflects the principle of freedom in prosecution and the trend to develop a relatively stringent criminal policy. After discussing the function of the system of prosecution delay in Germany, America and Japan in the fifth part, the author develops her idea by analyzing the necessity and feasibility of the system of prosecution delay in China, based on the introduction of the practice of the system in our country. China has owned the legal environment to adopt the system. It is not necessary to worry about the abuse of the system and challenge the justness of the system on the adult college student. Furthermore, the author presents her idea to establish this system in detail. In the conclusion part, the author sums up her argument and points out some problem which needs further discussion.