Research On Selective Prosecution In Criminal Proceedings

"Selective prosecution" is the behavior of the procuratorial organs which select part ofthe criminal suspect unfairly in the same group of cases, and violate the constitutionalprinciple of "equal protection",based on arbitrary classification. Selective prosecution is anabuse of public prosecution discretion in the performance of the procuratorial organs.It’scontrary to the the essential requirements of what public prosecution should be based onpublic interest.The harm of selective prosecution should not be ignored.At the micro levelit will affect the individual justice,and at the macro level it will affect the formation anddevelopment of the rule of law severely. Selective prosecution should not produce legaleffect because it violates the constitutional rights of equal protection and infringes thelegitimate rights of citizens.Foreign countries represented by the United States andJapan,have established a relief system for selective prosecution.The United States’ defensesystem of selective prosecution has developed comprehensively.United States hasestablished the defense system of selective prosecution by a series of landmark case likeYickWo v.Hopkins, and later established a strict standard of discovery and a double proofstandard which should prove both discriminatory effect and discriminatory intent.InJapan,"the theory of the abuse of public prosecution" provide theoretical support for thedefence of selective prosecution, but also provide useful experience for our state.Througha comparative study, I believe that each country no matter what genealogy of law itbelongs to, can adopt judicial means to relieve the selective prosecution.Because there areloopholes and shortcomings in our country’s review system of public prosecution, it isnecessary to establish a relief system for selective prosecution in our country, to curbsuch abuse of public prosecution behavior.Construction of selective prosecution of reliefsystem is accomplished primarily by system settings,such as improvement of reviewprocess of public prosecution, establishment of a Review Tribunal of public prosecution,giving the defendant the right to defend, inversion of the burden of proof.