Study On The Public Prosecution Withdrawal System

As an important part of prosecution indictment power, the withdrawal of public prosecution is a correction mechanism. In a criminal case that is under judgment, the prosecutor find it should not or could better not carry on the investigation for criminal responsibility of the accused, withdrawal of public prosecution has a remarkable influence on improving litigation efficiency and protecting the litigation rights of the accused, which stands for discretionary power of public prosecution and advances in the traditional litigation theory. Countries all around the world have developed a series of supporting measures in order to give full play to the role of prosecution withdrew and prevent it from being abused. In China, however, after Criminal Procedure law abolishing the withdrawal of the prosecution system, the Supreme Court and the Supreme People’s Procurator ate formulated somewhat superficial judicial interpretation depending on the practical needs, which reflects the tendency of judicial legislation. Due to absence of legislation, the legal basis for the indictment and rationality of the prosecution withdrew are in highly controversial, while in the meantime leading to the arbitrariness situation in withdrawal mechanism. The obstruction of witness case of Li Zhuang happened in 2011 is a typical case that fully reflecting the prosecution withdrawal operation status. This paper aims to elaborate the current status of prosecution withdrawal system, analyze the legislative changes and judicial operating system, and propose some sound advice to the indictment system.This paper is divided into five sections:In the first section, the paper makes a overall review about the prosecution withdrew system, and clarify the concept, nature, theoretical foundation and experience of extraterritorial legislation on the withdrawal of the prosecution. Then demonstrate the importance and necessity of this system in the theoretical way.In the second section, this paper makes a fully description of obstruction of witness case of Li Zhuang, analyzing the time, cause and judicial review of the case, reflecting the conventional procedure of prosecution withdrawal in judicial practice.The third part of the paper uses the legislative status of prosecution withdrawal as the starting point, expounding the legislation confirmation in 1979, the abolishment in 1996, adding judicial interpretation in 1998, Supreme Procurator ate issuing the “Prosecution withdrew guidance” in 2007 and the amendments of the Criminal Procedure Law in 2012, which clearly reflects the legislative changes, focusing on the progress of the “prosecution withdrew guidance”.The fourth part is the focus of this paper, discussing the problems of legislation absence, uncertainty of the applicable standards and legal effect, ineffectiveness of judicial review, and lack of remedy of the prosecution withdrawal in five respects which needs improvement.The fifth part of the paper puts forward the improvement measurements in legislative and procedure specifically. On the one hand define the applicable time, methods, scope, and legal effects, as well as the follow-up programs and the prohibition in the retrial on the other hand, in order to regulate the prosecution withdrawal, and ensure the realization of rights of the accused.