At The Discretion Not To Prosecute The System

The discretional non-prosecution is an important component of a civil suit, as to the discretional non-prosecution in our country, there are a lot of short -coming both in legislation regulation and actual judicial practice. Therefore, the author is trying to study some of the basic theory, the original of history, and the basic contents of discretional non-prosecution in the main countries of the world. The author is trying to find out some benefits of the knowledge to perfect the discretional non-prosecution system in our country.The article is divided into four parts.In the first part, there is a preliminary analysis on the concept and theoretical basis of non-prosecution discretion and the discretional non-prosecution. The author thought that the discretional non-prosecution means the Procuratorate organizations review the cases according to the law and think that the circumstances insignificance of the criminal suspects' criminal acts in accordance to the provisions of the criminal law need not to sentence the penalty or exempt from the penalty, not to prosecute, thus decided to terminate criminal procedural activities. The produce and the development of the discretional non-prosecution that has the profound theoretical basis in the legal history is an inevitable phenomenon. The rational finiteness and the importance of the experience are the philosophy foundation of the discretional non-prosecution system. The convenient principle, the economic litigation and the public interest are the legal foundation of the discretional non-prosecution system.The second part mainly introduces the original and historical overview of China's discretional non-prosecution system. The ancient China has profound legal culture origins: the guiding ideology of the legislative—"bright virtue and careful punishment", "rule of morality with its priority to penalty", the criminal policy of "combining punishment with leniency", allowance of the criminal penalty, prudent the criminal policy of criminal punishment etc. These criminal policies have still far-reaching effects on the non-prosecution System. In the late Qing Dynasty, the Qing Government imitated the western nation and established China's prosecution system. Before the new China founded, the Communist Party of China had accurately implemented the criminal policy: the differential treatment, disintegrating, and punishing minority, striving for majority, turning negative factors into positive factors from the agrarian revolution to the war of liberation. The Communist Party of China had repeatedly emphasized on the less killing, against arbitrary killing, adhered to the principle of the" be to correct wrong , be practical and realistic ", These criminal policies became the theoretical basis of the producing and the development of China's discretional non-prosecution system. Allowance of prosecution system embodied our country of " the Combination of punishment and allowance " policy, which established formally in the trial of Japanese war criminals.The third part mainly introduces and briefly compares the discretional non-prosecution of the mainly countries in the world. Discretional non-prosecution system in England, US, Germany, Japan, and South Korea are mainly introduced. Although there are certain differences about discretional non-prosecution in the counties of the Two Law Systems, there are also the compatibility trends in them. We should not only see the differences that exist in the Two Law Systems, but should pay more attention to the convergence in them. Conforming to the historical trends, we should boldly learn from the advanced experiences of other countries. Based on the national conditions, we should take foreign countries' long and abandon its short, which helps to construct a comprehensive and scientific discretional non-prosecution system that adapt to China's legislThe forth part mainly presents the situation of discretional non-prosecution system and the improvement of it. This chapter mainly analyzed the defect of the discretional non-prosecution system in our country and put forward some shallow proposals: take the public benefits as the guiding principle of the discretional non-prosecution; expand applicable scope of discretional non-prosecution; cancel " the public into the private prosecution "; suggest making relevance regulations on the incidental civil prosecution with non-prosecution case; build up and gradually improve the system of the postpone prosecution; Set up non-prosecution hearing system. The author expects that above-mentioned effort can benefit the consummation of non-prosecution in our country. The author studies shallowly and asks respectfully the experts, the scholar to give some useful proposal.