Comparative Study On Deferred Prosecution Between Cross-strait Of China

Deferred prosecution originated in Japan and Germany. Its motivation ofproduction and development is that increasingly serious crime situation produces theurgent requirement on efficiency of the criminal justice. Germany in the1960s, inorder to relieve the pressure of inadequate justice, the German parliament passed thelaw gives prosecutors some discretion not to prosecute. Common law countries,prosecutors have been given great discretion, its appearance of defer prosecution hasthe direct cause of the deterioration of the situation makes the crime of criminaljustice resources are relatively scarce.In the late1990s, Taiwan scholars pushed for the criminal prosecution of theoriginal implementation of the "inquisitorial" toward "adversary" correction. Taiwan"Ministry of Justice" was made in2002deferred prosecution draft system, passed itsthird reading in the same year on February8. Its updated grounds is that "Japan’s’deferred prosecution system ’ is the results of practical operation, and has indeed fullyfunctional screening of cases, can make a significant reduction in the case, so it beenhailed as’ sophisticated judicial’."Given the many interests involved deferred prosecution system, the legislativeprocess is relatively slow. In practice the situation "illegal trial" lasted ten years. Inthe case of highly controversial and discussed, and finally in2012on the occasion ofnew amendments to the Criminal Procedure Law, the conditional non-prosecutionsystem (equivalent to deferred prosecution system) written code of criminalprocedure, given the conditions attached to the legitimacy of non-prosecution systemposition.Deferred prosecution theory has four levels, first, Prosecution efficiencyrequirements, second, Extremes criminal policy, third, the efficiency value of punitivejustice, forth, Penalty justice and Modesty requirements of punishment.The new Code of Criminal Procedure of Mailland provisions relating to deferredprosecution, mainly in juvenile delinquency proceedings, including the specificstatute of Article271,272,273. Article271provisions for minors suspected of criminal law Chapter IV, Chapter V, Chapter VI of the crime, the penalty may besentenced to one year in prison or less, in line with the conditions for prosecution, butthe show repentance, the People’s Procurator may decide conditions attached to thedecision not to prosecute. Mainland provisions on deferred prosecution has thefollowing characteristics: First, the legislation does not directly use the word deferredprosecution, but the use of the conditional non-prosecution of the term; Secondly, onthe whole non-prosecution system in applicable objects, scope, conditions,discretionary basis, indicating burden has a more comprehensive regulations; Finally,it can be seen that for conditional non-prosecution law stipulates more general,operability is poor, many discretion standard is not specific enough, so it needsfurther improvement and supporting systems.Continental conditional non-prosecution system, although not written in themainland has long been the Criminal Procedure Law. In view of the urgent need forjudicial practice, the judiciary has long practice. Although there are unconstitutionalsuspected, but it still development in controversy, a lot of practice avoids direct use ofsuch words as conditional non-prosecution. It can be divided into the followingphases: the exploratory stage, the developing stage, the legalization phase. Since2012the promulgation of the new law,for judicial officers to use this system to providelegitimacy protection. Prosecutors do not have braved unconstitutional risk to utilizethis system.The legislative clauses concerning the system of deferred prosecution in Taiwanmainly are paragraph1to3of No.253article and No.260article, according to whichthe conditions can be categorized as three types: reply damage type; communityservice type and protection for observation type. According to judicial practice, it isfound that cases about slight offences against public safety in traffic offences aremostly applied to the system of deferred prosecution. On the other hand, the deferredprosecution system, in line with the criminal drug harm reduction policy in recentyears, has also demonstrated considerable success. In other words, if the procuratorialorgans of the state can coordinate the deferred prosecution with the existing criminalpolicy implementation to increase the number of the deferred prosecution cases, then it will be an efficient way to prevent recidivism and to defend regeneration, thus tostrengthen the soft judicial function of procuratorial organs.The reason for the differences between the deferred prosecution system inTaiwan and the one in mainland is that, in Taiwan, the main purpose of the deferredprosecution system is to tie in with the implementation of the party’s reformistlitigation system and its main social purpose is intended to improve the socialefficiency of judicial proceedings. The value principle lying behind this system ismostly focused on the actualization of legal efficiency. And the principle of socialstandard “The great happiness of most people” advocated by the utilitarian principleis also emphasized in this system. However, in mainland, the main purpose toimplement this system is to ease the pressure derived from the increased juveniledelinquencies. Its social purpose tends to be focused on the humanitarian care for theteenagers. The value principle this system adheres is the substantive justice. Itsfocused values are the humanism advocated by the school of natural law and theprotection of human rights, the individual-based principle.There are several similarities between the deferred prosecution system in Taiwanand the one in the mainland such as the strict scope of application, reasonableprocedure specification of litigation process, appropriate supervisory mechanism andprofessional evaluation, the clarity of the powers, rights and obligations for bothparties involved. But “any law is a kind of local language”(Geertz) since there are thedifferences of social background and the different maturity level of law. From theperspective of law designation, the differences between the two systems seem largewhich can be summarized as follows: obvious differences in applicable object,applicable scope, applicable conditions, instruction and accountability, supervisionand restriction mechanism.The Taiwanese deferred prosecution behind the idea of "Precision justice"gradually increasing, more inclined to dispose of the case as soon as possible. Thistrend is faced with the challenge of protecting victims Movement.From the use of proportions and apply effect,"symbolically than substance," themainland deferred prosecution is not worth the wait. The introduction of the relevant judicial interpretation should focus on the right to extend deferred prosecution,deferred prosecution related to construction and supporting systems.Deferred prosecution system into Law System Construction on the mainlandprosecutions brought no small impact and opportunities, summed up: Changeenforcement philosophy, the implementation of divisional handling, improveprocuratorial technology, standardized monitoring procedures, and actively promotesocial survey system, establish and improve assistance and education organizations,to carry out an interpretation reasoning work, promoting a minor criminalprosecutions and so on.