On The Application Of "Tempering Justice With Mercy" In The Prosecutorial Practice

In 2006, China put forward the criminal policy of new era, which was "tempering justice with mercy" in prosecutorial practice according to the changing situations of public order, the status of crimes and the objective analysis on the roots of crime. The proposal of that criminal policy was one of the big events which had landmark significances in the field of criminal law region; it became the important mean and policy guarantee for Chinese construction of socialist harmonious society in new era. However, at present studies on "tempering justice with mercy" still remain on theoretical perspective. There are less judicial practices which combine with judicial practice, in particular the researches on three key works relating to procuratorial organs --- investigation and supervision, prosecution and protest are quite limited, which thus influences the specific application of "tempering justice with mercy" in prosecutorial practice of criminal prosecution works. In this paper, it conducts researches on the application of "tempering justice with mercy" in prosecutorial practice from three aspects:Our criminal policy of "tempering justice with mercy" historical origin is "wide fierce of economic's governing thought, direct source is combined with wide punishes criminal policy. Tempering criminal policy is actually a "wide" and "strict" two parts, "wide" mainly for misdemeanor, "strict" is for felonies, content can be summarized as "the strict is strict, when wide width; the KuanYan complementary, while KuanYan regularly; the situation in the wide primarily." According to our country's objective practical situation, tempering criminal policy should grasp two principles:the principle of legality and adapt to the principle.The criminal policy of tempering justice with mercy "wide" especially, and criminal law tolerance spirit connotation on economics, there exists consistency, having sex, are limited, and last, etc. At present our country criminal phenomenon of weaker present political color, a large amount of crime is people to pursue and present property excessive social also cannot provide more activities property the contradiction between legal channels, and some neighborhood contradiction between the crime, crime phenomenon caused the tempering criminal policy change requirement, distinguish different circumstance to give treated differently. Our country is constructing harmonious society, tempering criminal policy is put forward under the big background in the present criminal policy, and the harmonious society for democracy and the rule of law, equity and justice, honesty and fraternity, vigor, stability and order, etc have in common. At the same time, our country at present situation of judicial resources shortage, urgent need through tempering criminal policy to rational configuration of limited judicial resources.Tempering criminal policy in every link of procuratorial work correctly implement comprehensive for punishing crimes, guarantee of human rights, and maintain social harmony and stability, promoting judicial justice and efficient, has great realistic meaning and profound historic significance. There is an urgent need to procuratorial organs to the criminal policy of tempering justice with mercy, for guidance in procuratorial work investigation supervision, prosecution, protest in full process such as applicable. But the procuratorial organs in the implementation of the criminal policy of tempering process, there are still many problems. In investigation supervision of the programs are judicial concepts lag, the alternative measures are not perfect, evaluation mechanism deviations, investigative activities pointing problems such as ill supervisory. Aimed at the problems, we should first of all to correct accentuation, effectively coordinate and solve in minor criminal cases without having to decide and guarantee for the contradiction between litigation; Secondly shall subjectivity, by expanding the scope of supervision, supplementary investigation investigation, strengthening supervision ways supervision measures, make the investigation investigation implement supervisory work; In work mechanism again in the exploration innovation; Finally shall improve guarantor pending trial system to ensure that the implementation of the functional target, In the prosecution of the programs are legal not to prosecute applicable scope is not comprehensive, relative not to prosecute applicable condition fuzzy, suitable dubious not to prosecute differ, not to prosecute species to be added. Aimed at the problems, should expand legal not to prosecute and relative not to prosecute scope, increase reconciliation not to prosecute system, implement fast for minor criminal case mechanism. In protest of the programs are on the performance of the trial surveillance function know enough, the existence of the exercise of psychology, negative protest criminal policy guidance, their neglected problems such as surveillance capability is not strong. Based on the existing problems, and JiChongJiQing case shall strengthen the indictment of sentencing, strengthen the case for improper for suspension, strengthening punishment for relief protest inappropriate case of protest, actively promote sentencing recommendations in a case of public prosecution.