The Restricting To The Right Of Public Prosecution

The restricting to the right of public prosecution is one of self-helping rights of victims. The system is aimed to prevent inquisitors from abusing the right of public prosecution and hurting victims. As for victims, the best approach to restricting the public prosecution is to gain the main position in a lawsuit. Such restriction will manage to avoid the abusing of public prosecution and make a great progress in criminal judicature. Under a perfect situation, victims should have the following rights. First, victims have right to require inquisitors start a public prosecution in time. Second, victims have right to participate the lawsuit. Third, victims should enjoy equal right which those defendants have. Forth, victims have right to express their disagreements and their advice about how to punish to criminals. Fifth, victims have right not to perform a procedure that may hurt their benefit. Under the influence of recovering judicature and victims-protecting movement, the "four-side lawsuit" came into being. The so called four-side lawsuit is a lawsuit form, in which, the victims, public procurators, defendants could resist each other under the redress of judges. The reason why victims should be endowed with the right to start a procedural judgment is that it could testify the rationality of the public prosecution. And it is not conflict with the specificity of public prosecution to our State. The judges should not only balance the benefit between victims and defendants but also should guarantee victims will be free of the consequences caused by the behavior of public prosecution abusing. The right of public prosecution is closely related to the benefits of citizens; therefore, it should be reasonably restricted by victims.According to the82nd item of the Criminal Procedural Law edited in1996, the victims are litigants, it is considered as a great progress. In fact, the rights of victims are usually neglected in lawsuits. Because there are no legal punishments to behavior which infringe the rights of victims, even some procedural right, such as the right of appealing and claiming are decided by the Procuratorate and Court. The author does not agree victims to appeal by themselves. For one thing, it is difficult for victims to complete such professional action. For another thing, it might undermine the authority of the right of public prosecution. According to the Criminal Procedural Law, victims have right to appeal to both the Court and the Procuratorate。However, the law is too general to put into practice.There is no obvious conflict between enforcing the restriction to public prosecution by victims and improving the status of victims. The restriction is consisting in the procedural preventing and influencing in advance, while the protection to victims is consisting mainly in the elimination of illegal evidence. There are several issues lying in the right of public prosecution in China, for example, emphasizing the public benefit too much, equating compensation to relief, keeping to the old lawsuit form, unreasonable transform system of public prosecution and civil prosecution, victims have no right to advise how to punish criminals, and so on. Therefore, the author proposals the following advice to improve the restriction to the right of public prosecution by victims:First, the criminal behavior should be recognized as civil tort. Second, the restricting to the public prosecution by victims should officially become the basic procedural right of victims. Third, victims should be considered as litigants in procedure. Fourth, victims should be endowed with the right of reconciling and appealing. Fifth, in procedural, victims should be officially endowed with the right of appealing. Sixth, victims should be endowed with the right of statement. Victims attach higher importance to their benefit than other citizens; therefore, the restriction to the right of public prosecution by victims is much more sensitive than other ways. The "restricting" is representing a new way to protect the right of victims, which not only accelerates the development of Criminal Procedure but also affords us a new visual angle to recognize Criminal Procedure.