Prosecution Discretion

Due to the stability and hysteresis of the law and the dynamic and complexity of the realistic social relations, judiciaries, in the judicial activities, must conduct their subjective judgment and the right of discretion at a certain degree, not just applying the rules simply and mechanically. The examining and sue phase is the most concentrative phase for the procuratorate to apply the right of discretion. Hence, the right of sue discretion is the core of the procuratorate's right of discretion. The right of sue discretion is not just an important part of Chinese procuratorate's right of discretion, but an important right for all the procuratorates in the world. Zhu Xiaoqing, deputy chief procurator of the Supreme People's Procuratorate, ever said in the eighth national annual symposium of the procuratorial theory that this subject had been decided as one of the concrete measures to implement the criminal policy of tempering justice with mercy. In the criminal policy of tempering justice with mercy, there are victim-offender-reconciliation system, conditional non-rosecutive system, and sentencing suggestion system. But we still can't get to the unified understanding of the nature and extent of the right of sue discretion, the reasonability of the restrictive mechanism, whether to absorb the plea bargaining system and how to implement the conditional non-rosecutive system. It's more and more obvious that the practice of the sue discretion right can't fit the new situation and modern judicial idea. Under such circumstances, it's an important subject in China criminal field to further perfect the configure system, to regulate the performance of the sue discretion right, and to ensure the reasonable and effective operation of the criminal procedures. Whereas the study of the procuratorate's right of the sue discretion is not systematic and comprehensive, China procuratorate's sue discretion right is not operated regularly yet, and the research to the reasonable application of the procuratorate's right of the sue discretion is still lack, this dissertation tries to explore how to reasonably apply the right of the sue discretion in China, mainly illustrating that it's not suitable to call the sue discretion right as the prosecuting discretion right, that the extent of the sue discretion should be defined (not including the doubtfully non-prosecutive and absolutely non-prosecutive cases), and the controversial question what is the nature of the sue discretion right. At the latter part, the author gives some suggestions on how to perfect the operation mode of the sue discretion right.