The Diversion Of Juvenile Criminal Procedure In Germany

The concept of judicial diversion is imported from north-american countries. However, from both the perspective of legislation and judicial practices, judicial diversion has now gained worldwide universality, especially in the juvenile criminal procedure. Based on the judicial economy and the avoid of label effect, based on the particularity of juvenile behavior caused by the particularity of juvenile mental, carried by the education-oriented judicial procedure, based on the diversified multiple dispute resolution mechanism and the inherent defect of judicial access in this diversified era, it is feasible and absolutely necessary to minimize the contact between minors and the judicial procedure, and to bring the minors into the social educational system in the way of diversion.The Institution of judicial diversion was first continuously advanced in America in the 1960s. By the introduction of art.32 of the juvenile court law, the procuratorate and court in Germany began to have the right of diversion in juvenile criminal procedure. In the first amendment to the Juvenile Court Act 1990, two stops the proceedings may retained for juvenile prosecutors, and re-worked in different ways, they are distributed in the two paragraphs. By making this change, the order of the prerequisite is consistent with the fact of the class. Since promulgation of the first amendment of the Juvenile Court law, discretion of the juvenile’s procuratorate is limited to judicial diversion prescribed in the first paragraph, the second paragraph is regarded as mandatory provisions. Accordingly, prosecutors and judges should firstly consider the possibility of judicial diversion before initiating public prosecution and making a formal trial.The provisions of the juvenile judicial diversion in Germany are already very complete after many years of practice. Art.153 and the following sections of the criminal procedural law, Art.45 and 47 of the juvenile court law, Art.31a,37 and 38 (the second paragraph) of the drug laws and all the state diversion regulations, have constructed the legal sources of the juvenile diversion program in Germany. On the other hand, the social educational measures, especially the improve of help and education institutions for teenagers, have not only provided help for judicial activities, but also support for subsequent social educational measures. According to the juvenile criminal law for minors and young people, there were more than 2/3 cases among all the implementation of the program completed with a judicial diversion.However, we can not ignore the current problems of judicial diversion, if we want to expand and strengthen the cases in informal way in the future. For example, the recorded of judicial diversions in the register of education, the juvenile judicial diversion confessed as premise for judicial diversion, the difference of the judicial regulations and practice between the federal states and so on.By studying the legislation and judicial practices of the german judicial diversion, especially Art.45 and 47 of the juvenile court law, this thesis has focused on the precondition and legal effect of judicial diversion, the relationship between the judicial diversion according to the criminal procedure law and the juvenile court law, and a series of problems.In addition, it has also rethought some legal problems arised and discussed in the judicial practice. On January 1,2013, the newly revised criminal procedure law took effect in China. For provisions about the nonprosecution with conditions in juvenile criminal procedure, this thesis has also made a brief introduction.