Research On The Second Kind Of Private Prosecution

The revised of "Code of Criminal Procedure" retain the provisions relating to private prosecution, and increased to three types of private prosecution. The second kind of private prosecution refers to the minor criminal cases that the victim has the evidence to proof that the criminal is guilty. This paper discusses three issues of the second kind of private prosecution: the scope of the second kind of private prosecution; the relationship of the right of private prosecution and the right of public prosecution; the balance of the public prosecution and private prosecution.The scope of the second kind of private prosecution have been given in the provisions of judicial interpretation, citing eight cases, so that the private prosecution have been expanded. Although this expansion can save the source of the administration of justice, there are some shortcomings. For example, the Abandon sin has no taken into account the ability of the victim to propose evidence. The eighth of the second kind of private prosecution almost contains all of the cases of Chapter IV, Chapter V in Criminal Law section. There is no distinction of the nature of the cases, the influence of the cases. Therefore, the scope of the second kind of private prosecution should be re-determined. The solution is to set the standard of the second kind of private prosecution. We can re-examine the scope in accordance with the new standard. The second problem of the second kind of private prosecution is the relationship of the right of private prosecution and the right of public prosecution. Because of the specificity of the second kind of private prosecution, the right of private prosecution and the right of public prosecution exist the cross and combination. The conflict of the two rights will be deal with in the paper which advocates that the public authorities should respect the choice of victims. The legal aid system and the different levels of intervention of the prosecution should be established in guarantee of the effective exercise of the right of private prosecution for the victims. When the victim give up the right of appeal and choose to make a complaint to the public security organs, the public prosecution will be started by the prosecution, so that the second kind of private prosecution will be trialed by indictment. However, there have different regulations between the public prosecution and the private prosecution, such as the different filing standards. The public prosecution is on the implementation of substantive examination, but the private prosecution a form of review. The private prosecution procedure can be applied to mediation, reconciliation, but the indictment not clearly defined on law, which may lead to different outcome of the litigation. To balance the program of the private prosecution and the public prosecution, a unified standard form of review should be implemented. In addition, the paper also proposed the introduction of criminal reconciliation system for the second kind of private prosecution.