Protection In The Discretion Not To Prosecute The Rights Of Victims

Criminal lawsuit of our country combined the prosecute statutory prosecution cheap principle as the mode of prosecution which gave procuratorial organ some rights of discretion and played a positive role in improving judicial efficiency and saving judicial cost. The discretional non-prosecution system is also called relatively non-prosecution system, the main content of it is A decision not to indict should be made within the scope of discretion after procuratorial organ reviewing the case and considering that the criminal suspect’s behavior is minor, which needs not imposition of penalty or can be free from punishment.Once discretion not to indict is abused, it would lead to conflict between the procuratorial organ and the victim. Discretional non-prosecution system is applyed by procuratorate for legal interests of educating and influencing the criminal suspect and keeping the criminal suspects from the criminal proceeding, but the victhn’s appeal is hard to get. Current law had regulated discretional non-prosecution system in applicable condition, procedures of making the discretion not to prosecute, the duty of disclosure for procuratorial organs, and relief way for victims. However, looking from the judicial practice, there are a lot of problems about the victim rights protection in discretional non-prosecution system. Based on the requirement of guarantee of human rights and judicial justice, according to our country judicial present situation, the main points of my papers is analyzing the relationship between the procuratorial authority and the victim rights in criminal proceedings, to find out the root cause of the victim rights needed to be protected in discretional non-prosecution system, in combination with reality of inadequate protection of the rights of the victim in discretional non-prosecution case in our country, consummating protection measures for the victim rights in our discretional non-prosecution system by learning from foreign experience.The main content of this paper includes three parts, first of all, the relationship between the role of the prosecutor and the victim in the criminal procedure is mainly analyzed:opposite of the unity. Based on analysis of two kinds of main body in terms of unity and opposite, the cause of the damage to the victim rights had achieved, the direction for full paper is also pointed out. Second, lacks of protection laws for the victim rights in our discretional non-prosecution system are summarized, such as the rights of disclosure, the program participation and the termination of program, which had pointed out directions for putting forward countermeasures and learning from foreign experience in accordance to the domestic situation, Finally, based on our existing shortcomings in legislation and judicial, some assumed protection measures for victim rights to improve discretional non-prosecution system is put forward by learning advanced legislative experience from the foreign related system.