Study On Re-prosecution By The Prosecutor In Criminal Proceedings

The objective of the modern criminal proceedings is no longer just to fight against crime, to maintain public order, while also focusing on the suspect, the defendant’s rights protection. In the judicial practice in China, there is re-prosecution of criminal suspects and defendants of the same conduct. To a certain extent, it constitutes the repeated prosecution of criminal suspects and defendants. This article aims to limit the right of criminal prosecution to protect the rights of criminal suspects and defendants; to prevent the suspect, the accused from dropping into the morass of criminal prosecution again and again. The author tries to describe it with six parts.The first part aims in defining the re-prosecution of the procurator; Re-prosecution is not like some other legal terms as established strict meaning. Different people have different understandings on what constitutes re-prosecution. By comparing with two related words "prosecution" and "repeat prosecution", clear the connotation and extension of re-prosecute. The re-prosecution refers to a prosecution made after the decision not to prosecute or prosecute, with the new facts, the evidence for the same offense in first instance. There are three manifestations of re-prosecution, which is re-prosecution after the decision not to prosecute, after the withdrawal of the prosecution and after doubts acquittal.The second part is to analyze the significance, the theoretical basis and its reflection of re-prosecution. The significance contains helping to combat crime and maintain social order, and meet desire of people. The re-prosecution theory is based primarily on the principle of correcting every wrong and the position of not to prosecute, a nolle prosequi and acquittal. But the re-prosecution may violate human rights, resulting in a lack of procedural justice, lowing efficiency of criminal proceedings. At the meanwhile, as the theoretical basis of the re-prosecution, the principle of correcting every wrong has value of loss, and the legal status on the doubt for acquittal is ill conceived. Not to prosecute, a nolle prosequi and acquittal plays a negative reinforcement effect to a certain extent. The third part tries tore-construct the theoretical basis of re-prosecution in China after studying the civil law and common law in limiting the re-prosecution theory. In civil law, re-prosecution is controlled by ne bis in idem, but it can not provide a support to re-prosecution before the judgment of the court, and the standard of the countries on the "issue" is not consistent in different countries. In common law, re-prosecution is controlled by Rule against Double Jeopardy. But there is big difference between China’s law and common law. We shall learn from ne bis in idem and Rule against Double Jeopardy, establish own theoretical basis of limiting re-prosecution.The fourth part aims in constructing legal control of re-prosecution in China, and also improves the related systems of re-prosecution. Learning from legal control of re-prosecution in other countries, we can limit re-prosecution of the former judgment by limiting re-indicted conditions and regulating the re-prosecution program. Re-prosecution after effective judgments should be turned into the retrial procedure, and the conditions for re-indicted in the retrial should be standardized. On the other hand, the procuratorial organs should standardize a nolle prosequi, adjust the positioning of the prosecution in the retrial procedure, and improve the procuratorial evaluation mechanism, ensuring a reasonable run of re-prosecution.