On The Establishment Of Conditions Of Non - Prosecution System In China's Criminal Procedure

In recent years, there has been a system called "postponement of prosecution", "postponement of non-prosecution" or "conditional non-prosecution" tried out in some procuratorates in China and aroused comprehensive controversy among legal scholars. In this paper, the system of conditional non-prosecution is expounded on some basic issues. Furthermore, through the observation towards the relevant inspection system of the abroad and Taiwan Province, taking national conditions and pilot experience into consideration, this paper is devoted in discussion the significance, feasibility and possible methods to constitute the system of conditional non-prosecution in China.In the introduction part, the issue is pointed out that now China is under a particular period, preparing for the amendment of the Criminal Procedure Law, so the research on this issue is of great theoretical and practical significance.In the second part, the concept of "conditional non-prosecution" is interpreted. Taking into consideration its fundamental intention of establishment and its distinction and connection with current non-prosecution regime in the Criminal Procedural Law in China, it is better to name this item as "conditional non-prosecution". Besides, the concept and features of conditional non-prosecution are described. The so-called conditional non-prosecution means a non-prosecution decision made by the prosecutor with several conditions attached to the person who should be prosecuted in a minor criminal case, only if this decision has more advantage to influence and correct the criminal suspects or is in favor of public interests. The decision of the conditional non-prosecution can only be made by the prosecutor, with the precondition that the behavior of the suspect has already constituted a crime. The final result of the case decided not to be persecuted under certain conditions also has uncertainties. Finally, comparing the regimes of conditional non-prosecution with legal non-prosecution, impeach non-prosecution and considered non-prosecution, the intension and the extension of the conditional non-prosecution are further definitude.Thirdly, the text inspects the relevant systems in Germany, Japan, the United States and Taiwan Province. The regime of conditional non-prosecution in Germany, the suspended prosecution in Japan, the postponement of prosecution in the United States and Taiwan Province all play important roles in legal practice respectively. Generally speaking, these systems are all the same in concept. However, they are different in specific regime designs because their varied traditional litigant concepts and legal systems. Difference of these systems include whether the procuratorial organs of conditions have the right to decide alone, and whether it must be attached conditions, and the difference in legal affects based on the conditions.Forthly, the theoretical basis of conditional non-prosecution is analyzed. conditional non-prosecution is the representation of the principle of opportunity in prosecution. It not only shares common values with other regimes of non-prosecution, incarnating the Ultima Ratio, the mitigation and the individualization of penalty, but also has two theoretical basis: one is the crime "Label Theory", which allows judiciaries of all domains to realize the limitations of short-term sentence and its negative effects. First-time and casual offenders will be applied to short-term liberty penalties with the moniker of "deviant" label, which is detrimental for them to return to society. The other is the concept of restorative justice. It is aimed at relieving the interests damage of the victim, demanding victim's compensation come in the first place, which rapidly and efficiently protects the legitimate rights and interests of victims. This part also made accordant answers to the quires of some scholars that whether the conditional prosecution is a breach of the the Principle of Division between Accusation and Trail, and whether it will lead to the abuse of the Discretionary Power to sue.Fifthly, under China's national conditions, the necessity and feasibility of establishing the conditional non-prosecution is discussed. The contradiction between limited judicial resources and rising crime rate in China has not absolutely solved yet, and one reason is that there is no procedure of reasonable derision before the trial for the minor crimes, while the conditional non-prosecution is a favorable solution. In building up a harmonious society, the criminal justice policy of Combination of Leniency and Harshness should be vigorously promoted in legal practice. It should not only be practiced in the part of the sentence but also be carried out in the entire criminal procedures. The power of prosecution on the Criminal Procedure Law in China is provided in two forms only: prosecution and non-prosecution. As judicial practice may vary greatly in specific cases, this monotony doctrine inevitably meets embarrassment frequently. Present regime of prosecution has not covered the unique significance of conditional non-prosecution. In addition, the conditional non-prosecution is beneficial for the protection of the rights of specific people. Whether a system is suitable for China's national conditions should be evaluated from three dimensions, namely, social background, system constitution and practical experience. Furthermore, the conditional non-prosecution agrees with Chinese traditional value-tolerance. Besides, the existing provision of non-prosecution provides a basis for conditional non-prosecution, and some of the exploration and practice conducted by some procuratorates adds valuable experiences.Sixthly, the fifth part of the text which is the essence of this paper, on the basis of the establishment of conditional non-prosecution in China expatiated in the fourth part, visualize a specific system design, including the range of applying, the applicable procedures, the inspection mechanisms as well as the measures restricting mechanism. The main points are as follows:First, the conditional non-prosecution can be applicable not only to criminal negligence but also to meet certain conditions of intentional crime. To advocate general provisions and exclusion in the form of defined terms of the scope of application of the prosecution system, three effective elements are necessary, and without exclusions the attached conditions can be applied to non-prosecute. Second, if criminal suspects or their legal representatives think that they fit the conditions of non-prosecution, they can apply to the procuratorial organs for the conditional non-prosecution through the public security organs, the People's Procuratorate has the power to decide whether to prosecute or not. The decision of conditional non-prosecution does not necessarily need the suspect's consent, because it is not the finality of the punishment and is not the entities action to convict the criminal suspects. As to the procuratorial organs, out of overall interests of society, they should promote the application of the conditional non-prosecution as much as possible. Once the decision is made, it soon becomes effective in terminating the indictment procedure, and the time limit for prosecuting the crime should be ceased .Using the Criminal Law in China on the regulations of probation as reference, and with reasonable analysis, the term for conditional non-prosecution will be provided as six months to three years decided by the procuratorial organs according to the specific circumstances of the case. Third ,the restraint mechanisms for conditional non-prosecutions can be consists of the following: the constraints to criminal suspects, the one to victims, the one to public security organs, the one to procuratorial organs and the one to supervisors. At the same time, in order to ensure the smooth operation of conditional non-prosecution, the system requires the establishment of corresponding measures such as publicly review system and social admonishing system for the minor criminal suspects.