Public Prosecution To Withdraw Prosecution System Research

With the development and improvement of China’s rule of law, the people have been making a stronger voice calling for fighting against the crimes and protecting human rights, which is not only inherent requirement of the rule of law,but also the strong guarantee to realize the social modernization. From the perspective of criminal justice, with two revisions of the criminal law by the NPC Standing Committee in the past two years, criminal law has gained comparatively comprehensive adjustments to be adapted to more modern atmosphere, in line with the pace of the times, but in contrast, the conservation and lag of the ones of the criminal procedure is evident. The traditional concept and governance structure of projecting emphasis on substantive laws and contempt of procedural fetters the pace of the modern rule of law, therefore, this weakness is in an emergent need to overcome through the establishment of new system by the legislature. Of course, the reform and improvement of the criminal justice system is a huge project, including the reconstruction and improvement of the system. This paper is to make the research and analysis on the building and improvement of the system of prosecution withdrawal against the defendant by the procuratorate.The system of prosecution withdrawal generated accompanying new procuratorate system and modern power of public prosecution is an important system of modern criminal justice. Most countries in the world in the legislation have endowed procurator the power of prosecution withdrawal. The rational exertion of this power can enhance the flexibility of the procedure and the correction of substance, increase the relative parties’ participation, and carry out the criminal justice policy to pay equal attention to punishment and mercy with both equity and efficiency to ensure social harmony and stability. However, there is not existing the explicit stipulation whether the prosecutors have the power to withdraw a commenced criminal case on China’s current "Code of Criminal Procedure", but the Supreme People’s Procuratorate and the Supreme People’s Court both promulgated the relative specific regulation as the form of judicial interpretation, which not only results confusion in theoretical circle, but also brings a lot of problems in the judicial practice. That "Criminal Procedure" does not require the withdrawal system is legislative negligence, or abolishment? That the judicial interpretation is a reasonable move to remedy for law-making or a transgression? Withdrawing the prosecution is a realistic and objective performance of procuratorate, or a conduct of abusing the judicial discretion? such Problems as above are resulting in the debate both in theoretical and practical circle. Under such disputing circumstances, there is no uniform standard and reference for procuratorate to implement the withdrawal system in the judicial practice, causing a certain confusion and the damage to the reputation of judicial authority. This paper aims to make in-depth analysis on the withdrawal system to identify its shortcomings, and meanwhile propose the ideas and suggestions to build and improve our system during learning from the advanced international experience, such as America and Britain. This paper is divided into five chapters with concluding into three parts:The first part, including the chapterⅠ, the outline of the prosecution withdrawal system and the chapterⅡ, the theoretical value of the withdrawal system, mainly accounts of the research background and issues put forward, the study purpose, the theoretical and practical value, and the content and focus of the study & the main innovation. At the same time, the comparison and analysis are made on the theory, and concept of the withdrawal system.The second part, including ChapterⅢ, Comparative Law of the prosecution withdrawal system, explains the analytic comparison for the establishment and application of different prosecution withdrawal system of major countries and regions depending on respective legislation models, such as America, Britain, Germany etc, and then point out their respective characteristics and what we should learn.The third part, including ChapterⅣ, empirical analysis of our prosecution withdrawal system and ChapterⅤ, reconstruction of our withdrawal system, makes in-depth analysis on shortcomings of our prosecution withdrawal system from both legislative and implementation levels and raises some ideas to reconstruct our systems combining with the advanced practice of other countries.