Research On The Non-prosecution Of Hearing Procedures

Non-prosecution directly decides the trend of proceedings and substantivehandling. Prosecutorial discretion of Non-prosecution is extremely dangerous to beabused unless effective measures are taken to supervise and restrict. In order tostandardize behavior of deciding Non-prosecution, the Supreme People’sProcuratorate public prosecution office published the rule of public review ofNon-prosecution cases in2001, therein demands a nationwide public review systemof Non-prosecution cases. However, we find, after an overall examination, there is alot of problems in the rule aforesaid, which might impossibly resolve all the existingproblems in the current Non-prosecution system effectively.This article starts from the core value of procedure of hearing, to analyze theexisting problems in the current procedure of Non-prosecution and public reviewsystem of Non-prosecution cases, and eventually design out a specific procedure ofhearing on Non-prosecution cases. This paper is divided into five parts.The first part gives a brief introduction about the current procedure ofNon-prosecution. Our current procedure of Non-prosecution is divided into threestages: review of admissibility stage; discussion; decision stage and declared therelief phase.The second part gives a finding about the existing problems in the currentprocedure of Non-prosecution. The author makes a thorough understanding of theprocedure of Non-prosecution, and then expounds emphatically the problemsexisting in the procedure. The main problems are the lack of openness andtransparency in decision making process, the lack of reasoning and demonstration indecision document, and especially the strictly control of the rate of non-prosecutionby Procuratorate and a necessary discuss on the cases of relative non-prosecutionand non-prosecution for insufficient of evidence by the committee of the People’sProcuratorate, not only regardless of the functions of the non-prosecution system,but also making the provision of non-prosecution in Criminal Procedural Law a merefigurehead. Besides, measures to restrain the non-prosecution are mostly ex post,lagged behind and not forceful.The third part introduces the practical operation about procedure of hearing onnon-prosecution. The author starts from the rule of public review of non-prosecutioncases and its practical operation, and after an analysis of its advantages and disadvantages to provide reference for the building of the procedure of hearing onnon-prosecution.The forth part introduces the necessity of the building of the procedure ofhearing on non-prosecution. There are two advantages in the import of procedure ofhearing into the non-prosecution system: on the one hand, it is beneficial for bothparties to express their interests demand publicly, to ease contradictions, to eliminateresentful emotion to the Procuratorate; on the other hand, it also helps to know moreabout the self-condition about suspect, the demand from injured person in a publicand transparent situation, and have a comprehensive consideration about thenecessity of prosecution, consequently, accomplish the functions of non-prosecutionsystem.The last but not least part is about the specific designation about the procedureof hearing on non-prosecution. The author gives a tentative building about theprocedure of hearing on non-prosecution from the five aspects: basic principles,scope of application, subject, specific procedures, and decision of hearing. If anyparty has dissent about the decision on relative non-prosecution and non-prosecutionfor insufficient evidence made by the Procuratorate, he can apply for a hearing onnon-prosecution in a reasonable time. The Procuratorate shall organize a hearingafter a procedural review, and the one who presides the hearing shall not be theprocuratorator under the case, but another non-interested chief procuratorator. At theend of the hearing, we make the final decision on the basis of the hearing decision oras a reference.