Study About The Docking System Of Conditional Non-prosecution

With conditions conditional non-prosecution is the direction of the Criminal Procedure Reform in China, and also the relevant provisions of the draft Code of Criminal Procedure of2011to modify this system. Perspective but in terms of the universal connection of philosophy, or a complete legal system point of view, whether it is starting from the extra-territorial experience, or our pilot analysis, the conditional non-prosecution system should give full play to its function, we must establish the appropriate docking system to form a smooth circulation of the institutional system. Therefore, this article studies conditional non-prosecution and focuses on the docking system.The first part of this article includes the concept of conditional non-prosecution, history, and the system. Comparing a variety of naming, definitions in theoretical circles, the practice of conditional non-prosecution, I believe that the title, conditional non-prosecution, has superiority, defined for the prosecution in the process of examination and prosecution of cases, certain conditions are met cases of criminal suspects, set a certain period for studying, temporarily prosecution, upon inspection expiration of, made the decision conditional non-prosecution the suspect eligible system. On the basis of domestic and foreign origin, the author discusses both substantive and procedural aspects of the basic framework of conditional non-prosecution system itself.The second part demonstrates the value of this study, discussing the necessity and feasibility to establish the docking system. In theory, the link is the objective nature in the world, and so is conditional non-prosecution system. The establishment of the docking system has considerable necessity. Mature system of victim-offender reconciliation is one of the engines to establish conditional non-prosecution system; improved the help and education system is the proper meaning to establish the conditional non-prosecution system; completed the supervision and control system is inevitable requirements as conditional non-prosecution runs in accordance with the law; establishing a risk management system is an important guarantee for the steady development of conditional non-prosecution system. From a practical perspective, conditional non-prosecution the pilots in China made some achievements, and the pilots have more or less established the exploration of the docking system, including how to effectively resolve social conflicts, the implementation of social assistance and education to eliminate the abuse of power, circumvent all kinds of risks and so on. But there are some problems in terms of standardization, legalization and effectiveness, which have affected the further development of the conditional non-prosecution of reform. This proves that it has a considerable need to establish the docking system and also has a full feasibility.The third part introduces extraterritorial experience about how to establish the docking system, which builds system below provide a useful reference, covering the establishment of an effective power supervision and control mechanism in Germany in civil law systems, Rehabilitation protection system in Japan, a diversion project system in the United States.The fourth part is both the focus and the innovation of this paper, in my opinion how to establish the necessary docking system. Firstly, it is to research about the victim-offender reconciliation system. Conditional non-prosecution stressed the preventive function of criminal law, but its application on the premise must not lead to new social conflicts and even the crime occurred, that is, the maximum degree of recovery of damaged social relations, then, how to evaluate it? I believe that the most direct way is the victim-offender reconciliation, and we must prevent the phenomenon of "money for punishment". Victim-offender reconciliation must adhere to principles, including combination of party autonomy and legal system, adequate compensation and public welfare, limit the scope of application, presided over by the public security and judicial or people’s mediators, and protect the victim-offender reconciliation in accordance with the law. Cases for victim-offender reconciliation is reached, should be approached distinctly. For examination and prosecution aspects of the case, we can legally start the conditional non-prosecution program, and ultimately make the prosecution decision or non-prosecution. Of course, the victim-offender reconciliation is not a prerequisite for conditional non-prosecution, without the victim-offender reconciliation of cases, can also start with conditional non-prosecution.Secondly, it is about community assistance and education system. The biggest advantage of conditional non-prosecution is embodied.2003, the pilot of the Community Correction, the Criminal Law Amendment Act also clearly stipulates that the Community Correction System, I believe that this help and education model should extend to the conditional non-prosecution personnel, and community correction should not be limited to the decision of the trial. In order to distinguish types of penalties of Community Correction, I will call it’community assistance and education system’. Made a Comparative Study of measures to carry out community assistance and education, organization, scope of application, in the UK, USA, Japan, Russia and others, I believe that the mature community correction system should have the following characteristics:broad types showing progressive nature, diverse means, standardized operation. Summarized the domestic pilot project, comparatively analyzed of the pros and cons of the "Beijing Model" and "Shanghai model", I believe that there are some shortage, such as, it is not clear who is the main responsibility. On this basis, I propose the establishment of a Judicial Administrative Enforcement Administration in the Ministry of Justice, under the Community Corrections is responsible for the work; and it is correct to establish a work force of professionals, associate professionals, and the community volunteers; In addition to fulfill the obligation of reparation, but also it is necessary to establish community services, home confinement, electronic monitoring and other assistance and education measures. Meanwhile, conditional non-prosecution would inevitably lead to the Community Correction, Community Correction is not necessarily because of the conditional non-prosecution.Third, the supervision and control system. Power is a breeding ground for corruption, and the unsupervised power corrupts absolutely. On the terms of the procurator, the combination of inside and outside of the supervision mechanism should be established. External constraints are from the NPC’s, the people’s supervisor, the hearing, public opinion and so on. Generally speaking, the external oversight is always with a lag, but the people’s supervisors and hearing supervision can be advanced, effectively avoiding the drawbacks of post-supervision. On the basis of analysis of existing the people’s supervisor system, I believe that the four characteristics should be adhered to:the subject of democracy, to review written supervision prior and effectiveness of the proposal. For special cases, we can hold a hearing.The fourth is about the risk management system. It must be scientific and effective manner to apply conditional non-prosecution to prevent violations of law and discipline risk, quality of case handling risks and handling effects risk. The first two categories of risk is primarily prevented by the establishment of a sound, implement case-handling mechanism. The last is more and more difficult and becomes an important issue. I suggest to establish risk management systems, including the simultaneous assessment, three early warning, contingency plans. Reviewing the facts of the case and evidence, the contractors should produce a risk assessment table. A score of0cases shall not apply to conditional non-prosecution; cases of30points or less do not apply to conditional non-prosecution; cases of more than30points,75points or less, can be applied to the conditional non-prosecution; cases of more than75points shall apply to the conditional non-prosecution. And we divide cases into three warning levels, including green, yellow, red, and make contingency plans.