Study On The Improvement Of Relative Non-prosecution System In China

Relative non-prosecution is also named "pretty misdemeanor non-prosecution ", "flexible non-prosecution", "discretionary non-prosecution". It is a system that procuratorial organ taking into account other factors such as corpus delicti and its polt, social harm, the suspect's dangerousness, litigation economics, public interest and so on abandon prosecutions of certain cases which meet the standards of evidence and end the criminal procedure. Relative non-prosecution system is the uppermost discretionary powers for procurators and is the litigation procedure which has been estabished by most countries in the world. Our country definitely stipulated the system in Criminal Procedure Law which was amended in 1996.Relative non-prosecution system takes the intent notion of punishment as its justice idea base. The intent notion of punishment claims that the intent of penalty is to prevent crimes , and that punishment on claims that is just a precaution of future possible commitment rather than a mere punishment or education on criminals. This opinion is very different from the conventional doctrine of retribution-oriented punishment. When the notion of penalty changed the intent of criminal procedure , the doctrine of legal prosecution which demands every crime be prosecuted lost its theoretical base, and accordingly doctrine of free evaluation prosecution emerged. The relative system , which is based on doctrine of free evaluation prosecution , is of great value in terms of safeguarding human rights, striking crimes and reducing vexatious suit.Considering the justice practice in the past decade, there are still a lot of question needed to be settled for the competence of relative non-prosecution system. First of all, the relevance factor of it is very low. This article puts forward that there exist some reasons as the following: first, the legislation of relative non-prosecution system is too strict; secondly, the legislation of two application essentials in relative non-prosecution system is too dark, epitome and leads to diversity in the proceeding of case; thirdly, the criminal policy of "attack severely " leads to inexorable punishment on crimes but ignoring prevention, and procuratorial organ strictly control the rate of non-prosecution; fourthly, the procedure of relative non-prosecution which was legislated by law and procuratorial organ is fussy. The second question of relative non-prosecution system in our country is the loss of balance on crime types in the applying procedures, especially occurs most in the abuse of non-prosecution in cases of crimes by taking advantage of duty. There are some weakness in relative non-prosecution legal system, which embody most in the rules of public prosecution changing to private prosecution. Some improper relative non-prosecution cases do flourish to some degree in some common local procuratorial organs, due to the complexity of the social judicial environment and imperfection of criminal law. The specific reasons are as followed: firstly , owing to the performance assessment criteria some procuratorial organ treat some case as relative non-prosecution ones which should be the case of legal non-prosecution or non - prosecution with doubt; secondly, owing to some legal blind spot there exist some relative non-prosecution cases; thirdly, sometimes relative non-prosecution is a measure of lighter punishment for tainted witness.The writer suggest that we should perfect the legislation on relative non-prosecution system because of its various deficiency in practice. The initial compose includes the following six aspects : firstly, we should refer to foreign legislation experiences and treat"public interest"as an criterion for the application of relative non-prosecution; secondly, this article suggests that we should specify the applied cords by making its content clearly; thirdly, in order to carry out the criminal policy of temper justice with mercy we should expand the sphere of application properly; forthly, we should substitute victim judicial review for victim relief system in which public prosecution changes to private prosecution in relative non-prosecution case; fifthly, we suggest that we should put public review system of relative non-prosecution into the code.A connection of criminal reconciliation with relative non-prosecution system will be an indispensable strategy for the perfection of relative non-prosecution system. Therefore, it is necessary to devise out the specific joint part between criminal reconciliation and relative non-prosecution system. Moreover, criminal reconciliation is a powerful justification of the implementation of criminal judicial policy of temper justice with mercy and it enjoys great similarity with relative non-prosecution system judicially. This paper is aimed at the following constructive divisions, to perfect the start-up main body of reconciliation during the public prosecution in criminal case, to mediate the main body, to formulate an essential manipulation procedure, and to confirm the reconciliation contract.