Theory Of The Establishment Of A Conditional Not To Sue System In Our Country

Conditional non-prosecution system, which originated in Germany, Japan and some other countries and regions, is an embodiment of the doctrine of prosecuting discretion in criminal prosecution and the results of the prosecutor’s use of prosecution discretion. It is able to improve the efficiency of the proceedings and restore the damaged social relationships, which is helpful in the general prevention and special prevention. Conditional non-prosecution system was added in the amendment to criminal procedure law which has been passed not long ago. The establishment of conditional non-prosecution system in our country is essential to the perfection of our public prosecution system, the reasonable allocation of our judicial resources, and the improvement of human rights protection. Development of the theory of purpose of penalty, the doctrine of prosecuting discretion established, the rise of law and economics, the proposal of restorative justice form the academic foundations of conditional non-prosecution system. And some local people’s prosecutor’s offices has made experiments and explorations on this system in recent years, which is the practical basis of the system.However, there are some points worthy of our study about the conditional non-prosecution system in the amendment to criminal procedure law. The author thinks that, in reference to foreign experiences, it may be appropriate to expand the scope of application of conditional non-prosecution, define the applicable conditions of conditional non-prosecution and increase the procedures of conditional non-prosecution. It is evident that the lack of supervision and restriction of conditional non-prosecution may lead to the abuse of prosecution discretion. Therefore, to ensure that the conditional non-prosecution functions properly, the corresponding supervision and restriction mechanism must be set up to make conditional non-prosecution system work effectively.