Research On The Restrictive Mechanism Of The Abuse Of The Procuratorial Organs Prosecution Discretion

At present, most of the countries have established the system which the government agency can initiate a public prosecution by way of function and power. In other words, when the procuratorial organ review and make a decision of prosecution to a criminal suspect, they have the discretion to choice prosecute or not on the basis of the legal provisions and the specific circumstance of the case as well as the spirit of fairness. The discretion of the procuratorial organ plays an important role in improving the efficiency of lawsuit, saving judicial resources, reducing the cost of litigation and emphasizing the defendant’s lawsuit status.It is common to find that since the right of initiating a public prosecution becomes the common form in the criminal prosecution, the abuse and neglect of the right has always occurred. Some prosecutors know perfectly well that the case does not meet the conditions for prosecution, they still prosecute; some prosecutors hold the idea of "prosecute to the Supreme Court first, withdraw it if not judge" to sue the case which lack of evidence to the court with fluky mentality; and even some prosecutors regard prosecution discretion as the tool of revenging against citizens, eliminating political dissidents, and seeking personal gain. The abuse of prosecutorial discretion has challenged the judicial authority seriously. A series of miscarriages of justice exposed in our judicial practice have lead to a crisis of confidence to our procuratorial organs, and the problem of abusing prosecutorial discretion has attracted people’s attention day by day. How to establish the corresponding mechanism to effectively prevent the prosecution discretion from abusing has become a puzzle that needed to solve urgently in our current.The purpose of this paper is based on the grim fact of the abuse of China’s procuratorial organs’ prosecution discretion and the urgency to restrict the abuse. The author hopes to explore our country procuratorial organs’ prosecution discretion, the forms, causes and solutions of the abuse via a miniature--Wenjun Wu case which reflects the procuratorial organs’ abuse of prosecutorial discretion. The paper is divided into the following four parts:The first part defines the concept of the procuratorial organs’ abuse of discretionary power of prosecuting. In the whole procedure of the Wenjun Wu case, the prosecutors of Guangde have sued twice, and withdrew twice, which took21months ended. Regard this case as a starting point to set forth the concept of the procuratorial organs’ abuse of discretionary power of prosecuting. It identifies the abuse of discretionary power of prosecuting from three aspects--the procuratorial organ’s behavior runs counter to legal requirements, independent requirements and appropriately tailored requirements. Finally, this part introduces the expressions of the procuratorial organs’ abuse of discretionary power of prosecuting in this case, which are prosecute vindictively with bad faith, institute proceedings without ample evidence and sue again after withdrawing.The second part:the cause analysis of China’s procuratorial organs’ abuse of right to sue. In this paper, regard the Wenjun Wu case as a starting point to explore the cause of China’s procuratorial organs’ abuse of discretionary power of prosecuting. First of all, from the source of problem, the strong thought of Authority Principle and national prosecution lead to the power imbalance between the prosecution and the defense. In addition, the procuratorial organs abuse discretionary power of prosecuting in the name of defending the interests of the state and the public.Then, find the shortage from our existing control system. Finally, analyze from the un-science of the internal appraisal mechanism of procuratorial organs.The third part expounds the perfect measures of restricting procuratorial organs’ abuse of discretionary power of prosecuting. Firstly, establish modern criminal justice idea, which includes power restriction idea and human rights protection idea. Then, propose measures to restrict procuratorial organs’ abuse of discretionary power of prosecuting both establish preliminary hearing system from the outside and enhance internal supervisory mechanism. At last, improve the internal appraisal mechanism of procuratorial organs.