Prosecution System

When the code of criminal procedure modified in 1996, in order to solve the problem of victims being short of the right to protect themselves from suffering the violation of prosecuting attorney not to accuse the suspect of crime, our country constituted "the system of public prosecution transferring to private prosecution". The system was established only in our country and brought controversy of ever kind. Some scholars even request that the system of public prosecution transferring to private prosecution should be replaced by the victim's justice administration application system. So, the author of the thesis will start from investigating the basic theory of the system of public prosecution transferring to private prosecution, and conclude that the system is meaningful for the protection of crime victims. At last, the author will give some advice of perfecting the system of public prosecution transferring to private prosecution.Full text except the part of introduction and conclusion are outside part of is totally divided into four parts.The first part is about the basic theory of the system of public prosecution transferring to private prosecution. Firstly, according to the current code of criminal procedure, the author will give a definition on the system of public prosecution transferring to private prosecution, which is that after the prosecuting attorney refuse to accuse a crime suspect, the victims will get the right of accusing the crime by ways of private prosecution in order to achieve the purpose of criminal procedure. Secondly, according to the current code of criminal procedure, the writer takes the view that the scope of the system of public prosecution transferring to private prosecution not only include the crime which are ruled in chapter 4 and chapter 5 of crime law, but also should other chapters of crime law which rule the crime of invasion citizen human body and property right. And, the system can be used when the case are both in the investigate stage and sue stage, but there are two condition for applying the system: one is that the prosecuting attorney has refused to accuse the crime in the way of subscribing the document ;the other is that the victim must give the evidence which can proof that the crime has invaded their body and property right .Thirdly, the author will study the history and legislative original idea of the system of public prosecution transferring to private prosecution. In end, because the system of public prosecution transferring to private prosecution refers to the relationships between public prosecution and private prosecution and issue of presenting victims with the right of criminal prosecution to restrict prosecuting attorney's power, the author will focus on the two issues and give a detailed analyse.The second part is about comparing the system of public prosecution transferring to private prosecution with some similar system abroad. For the reason that the law system of our country is more similar as the Continental Law, the article are focusing on the comparison with the system in the countries of Continental Law ,and take Germany, France and Japan as an example. Owing to the introduction of the abroad related law system, the author take the view that in the world, most nations concentrate on strengthening the protection of victim's right. Although these system in some extent carry on the back strict litigation legal theory, it has to been seen that these system get a very strong realistic meaning. And, the abroad successful lawmaking examples give a good lesson to the system of public prosecution transferring to private prosecution in our country.The third part is concerning the real situation of the system of public prosecution transferring to private prosecution in practice and about the defect of the system. At first, the author takes two cases of the system for example, by researching in a positivism way, to get conclusion. The conclusion is that: the system of public prosecution transferring to private prosecution is meaningful; the evidence collected by the prosecuting attorney in public prosecution procedure still can be used by victim in the private prosecution procedure as accusation evidence; the scope crime victim not only includes natural person, but also organizations, such as business unit and legal person...etc.. Then, the writer consider that the defect of the current system public prosecution transferring to private prosecution can be concluded as five reasons: First, the antinomy of the code; Second, the victim's short of ways to collect and offer evidence; Third, the victim undertakes an obligation of pursue for the crime, which is bad for punishing the crime and protection of victims; Fourth, the case which can apply the system is too much that it is bad for realization of the value of procedure efficiency; Fifth, the system and don't rule the problem does not rule the prescription ,which is bad for the protection of both the right of the suspect and victim.End, four-part cent of article is about the reason for reserving the system of public prosecution transferring to private prosecution, and the foundation and measure of perfecting the system of public prosecution transferring to private prosecution. The author considers that there are there reasons for reservation the system: First, the system is accordant with the protection of human right in our country; Second, the defect of the system can be solved within it; Third, in the scope of the economy in the lawmaking process, reserving is much better than any else. In the meantime, the author also takes a view that the reform of the system should take opposite and reasonable doctrine as its theories, and the concrete measure are following: the case applying of the system should be limited to a smaller scope; perfecting the correlative system, such as withdraw case system; increasing a procedure in which the court will censor the case before holding a court; ruling the prosecuting attorney more obligation; setup the procedure prescription.