On At The Discretion Not To Prosecute

Discretional non-prosecute system is very important in criminal procedure. It can not only efficiently save judicial resources, benefit for human right guaranty of offenders, but also reflect the democracy and legal rule standard of one country. In 1996, non-prosecute system of 1979 Criminal Procedure Law has been replaced by discretional non-prosecute system. But, there is default in discretional non-prosecute system which results in its low using rate in practice. In practice, the opposite effects of discretional non-prosecute system is over its advantages from some aspect, which disobey its original legislation intention. Facing the increase criminal rate with limited judicial resource, it is necessary to do deep research of our discretional non-prosecute system. Focused on basic theory, related legislation and practice, this article attempts to appeal more attention for discretional non-prosecute system.This article is divided into 5 parts.The introduction is mainly about the importance of discretional non-prosecute system, and on this base, there are defaults in legislation and practice, furthermore, the necessary of consummate the system is needed.The 1^st part is mainly about basic theory. Firstly, the suit deciding is defined as judicial power on the basis of its definition and features. Then, the reason of establishment of discretional non-prosecute system has been discussed from three respects. At last, the efficient of discretional non-prosecution and its unconditional repeat has been analyzed, furthermore, the opinions and causes of the author has been stated.The 2^nd part is mainly about comparative research of discretional non-prosecution. This part inducts the trend and difference of two legal systems from comparatively study and it provides some valuable foreign legislation experience to implement our own system. From main body, conditions and surveillance of discretional non-prosecution, this article studies the related system of UK, US, Germany, France and Japan, etc. And on this, the common ground of expanding tendency of the two legal systems has been concluded. the scope of British-American legal system is wider than that of Continental legal system; and the power of continental prosecutor has more restricted than that of British-American legal system.The 3^rd part is about the status quo of discretional non-prosecution system from two aspects, that is its legislation and practice status. The legislation status are as follows: its limited scope, substantial content is shorted, restriction system is not efficient enough, efficiency is not defined in legislation, its procedure is not open to public, and the accused has no right to choose procedure. Among them, the practice status are as follows: low usage, insolvable problem of public prosecute to private prosecute, the non-ideal replace measures of practice. On the basis of above study, the author considers that there are many problems in its system and practice, so the necessary consummation has been needed.The 4^th part is the focus of this article, it states consummation of discretional non-prosecution system. First, the reality necessary of consummation has been discussed from following three aspects: uprising criminal rate with short judicial resources ; the change of understanding of criminal and penalty from country and society; the implement of criminal judicial policy. Then, the tentative plans are put forward, which include consummation legislation so as to improve its usage; reform its restriction system and set up third part compulsory suit system; define its efficiency; improve its replace measures; set up hearing procedure and give choose right of procedure to the defendant; simple up the inner examination procedure of the procuratorate and set up related rewards and punishment system etc. From its consummation, the democracy and friendly of criminal judicature have been improved.