On The Procuratorial Organs To Prosecute Discretion

In recent years, the conflict between ascending amount of criminal cases and the limited justice source is significant with the development of human economic society. How to use better the limited justice source to handle criminalcases as many as possible is an urgent problem in modern criminal action. So the research in this problem is important.The core of this article is to promulgate the right operation mechanism of the prosecuting discretion. We want to elaborate that how to set up or perfect it in a nation can realize its maximum value and avoid its disadvantages in the meantime. We hope this research will contribute to the prosecuting discretion of our country.The thesis is, about 40,000 words, composed of three parts.The first part is the summary on the prosecuting discretion. It is a power that the public prosecutor decides whether to indict an offender or not according to the fact of the case and the demand of the law in the criminal procedure. The characters of it are validity, independency and discretion. It has various way to operate and has more than one effect in the law.The second part is the comparison of the prosecuting discretion in different countries. We found that the similar reason for the prosecuting discretion in all countries is the conflict between the increasing criminal cases and the limited judicial resources. Legitimacy is the common character of the prosecuting discretion in all countries and native state which is the most important factor to be considered. The differences are also very obvious. Compared with the continental law system and the anglo-American lawsystem, the adoptions cope of the prosecuting discretion in continental law system is larger and has more methods to choose, the continental law system stress to lay particular emphasis on the strict restriction of the prosecution decision ,while the anglo-American law system have established supervision mechanism to the decision of abandoning prosecution . The difference in the pattern of executing the discretion is that in the countries of anglo-Americanlaw system, the scope of prosecuting discretion is comparatively wide and the pattern of execution is comparatively flexible. Contrary to the anglo-American law system, the prosecutor in the countries of continentallaw system executes prosecuting discretion comparatively stiffly. The reason for these differences mainly lies in the law culture, the law tradition and the litigation mode of all countries. But along with the exchange and fusion of all countries' law culture and international crime judicatory, the prosecuting discretion in all countries appears to melt mutually. We get the general operation theory of the prosecuting discretion. From all above, we should follow four basic principles: public welfare, proportion, legality and efficiency in the discretion in prosecution. We need to clear the scope and the supervision mechanism of the prosecutingdiscretion by legislation according to native state.The third part is the suggests about the establishment of the system of prosecuting discretion in China.There are two problems on prosecuting discretion inlegislation and practice: one is that its application pattern is single, its application scope is too narrow and its application is strictly limited, which makes it not meet the need of the crime judicatory nowadays. On the other hand, the supervision mechanism also need to consummate, including prosecution decision and abandoning decision. On the basis of discussing on the necessity and feasibility of the improvement and construction of prosecuting discretion system, the article suggests the thinking of establishingthe system on prosecuting discretion in China. Firstly, we should clear the principles of the prosecuting discretion and extend its applying scope. Secondly, we should give more choices to the public prosecutor to exercisethe prosecuting discretion. Thirdly, we need to cancel some unreasonable system in order to promise the legal effect of the prosecuting discretion. Fourthly, we need to perfect our nation's supervision mechanism of the prosecuting discretion.The prosecuting discretion will play a vital role in criminal proceedings as an important system. It is necessary to study its general operation theory further. It is grate to note that the prosecuting discretion in our nation has attracted more and more attention and the amendment of China's " Criminal Procedural Act" has been put on the agenda, which provides a good opportunity for our nation's discretion to prosecution to improve. We have great expectations and confidence to the further consummation of the prosecuting discretion in our nation.