Prosecution Discretion Study

The public prosecution discretion is an important power for prosecutors during the criminal jurisdiction procedure. Basic studies on it have important effect to the revision of the criminal procedure law and to the present jurisdiction reform.Generally speaking, the discretion of public prosecution refers to the concrete power in specific suit that prosecutors could make decision by own relatively about the following questions such as making public prosecution or not and how to do it and so on. To permit prosecutors some discretionary power can benefit to promote efficiency and protect jurisdiction resource by procedure division, to realize justice in certain criminal litigation ; and to perform the regulation mechanism of criminal policy. Public interest, discretion under law and combining law effect with sociable effect are the three principles of the prosecutors' discretionary power.Prosecutors have widely discretionary powers in the criminal proceedings in America, Germany and Japan, which also developed into different patterns. The third part of this article has elaborate descriptions and analysises, which will be of great significance for reference to do the reform and perfection in china.Our country's criminal procedure law has granted the prosecutor limited prosecution discretion with the discretionary non-prosecution. But there are also some problems, for example, too much restriction, abnormal procedure and non-developed restriction mechanism and so on. This situation has brought about little procedure division during the public pros step, and damage to interest of the suspect with the prosecutor abusing discretion. However, recently many prosecute agencies of china make a lot of reforms such as "Plea Bargaining" and "immunity of Tainted Witness" and so on, which has violated the present criminal procedure law badly. For another, there are many social factors forming powerful impetus to enlarge prosecutor's discretion in future, which are the rigid embarrassment between enormous lawsuits and limited jurisdiction resource, and the establishment of the criminal policy of combining punishment with leniency.With the analysis above, the author thinks that prosecutor's discretion should be enlarged further. In order to prevent and solve the danger following the discretionary power, lots of measures ought to be taken to perfect restriction mechanism and develop professional prosecutors. Therefore, the field where prosecutor's discretion can be used should be enlarged for further, and some other patterns also need to be established. Moreover, it's necessary to construct pros-check mechanism and to reform the present restrictions, and regulate the modifications after prosecution to court, so that ensure the discretionary power perform well other than abuse.