Prosecutors Discretion System Research In China

In criminal proceedings, the discretion of the modern countries have given a prosecutor, most important is the embodiment of the prosecution discretion. In this paper, the first part defines the concept of prosecution discretion from the prosecutor’s departure the necessity of the establishment of discretion in public prosecution right and restriction of discretion in public prosecution.China’s procuratorial organs prosecution discretion from the 2012 "Criminal Procedure Law" provisions of article 173rd, in 2012 the new criminal procedure law has added a series of special procedures, in the minor chapter procedure of criminal case in the provisions of the conditional non prosecution system, in the chapter of the criminal reconciliation procedure specified in the reconciliation of non prosecution system, is also a manifestation of prosecution discretion. Some deficiencies still exist in our discretion in public prosecution system, mainly in these aspects:first, the lack of prosecution review mechanism; second, the scope of discretion in public prosecution is too narrow; third, the non prosecution restriction mechanism set up properly; fourth, inside the procuratorial organs prosecution work mechanism is not reasonable. Investigate its reason, there are two aspects, one is the concept of the rule of law in China is still at the lower stage, from the legislative defects, on the other hand, the procuratorial organs as a whole, the exercise of prosecutorial power is not willing to accept the restriction and supervision, the procuratorial organs in the course of their duties within the Department to develop a working mechanism, the purpose is to promote the functions performed correctly, but in reality has been working mechanism and practical demand can not be convergence problem. For each one of the prosecuting discretion anomie phenomenon, the author analyzed the reason of the legislation and practice in.The third part of this paper reference to the discretion of public prosecution prosecution system in the two legal system countries. The continental legal system in Japan, the current German laws as the reference object, the legal system of Anglo American law system as reference objects to Britain, USA. The two law of discretion in public prosecution system has the very big difference, the specific expression of each of the national legal system is different, the influence factors and political factors which are historical tradition, there are different modes of action. With the trend of globalization, communication of legal culture, the essence of the two law systems can be used.The fourth part through a comparative study of the two major legal systems of the legal system of the state, our country put forward the idea of norms of discretion in public prosecution system. We should perfect the public prosecution mechanism, establish and improve the Chinese characteristic, has embodied the concept of socialist rule of law of public prosecution mechanism; second, the legislation on the appropriate expansion of discretion in public prosecution, to expand the scope of relative non prosecution and non prosecution conditions; third, to perfect the restriction mechanism of discretion in public prosecution, the need for external supervision and internal control work along both lines; fourth, we must reform the internal working mechanism of the procuratorial organs, procuratorial work be imperative to establish a scientific mechanism of. Can be said that the internal working mechanism of procuratorial organs do not change, the effective restriction mechanism of the procuratorial organs can not build on the prosecuting discretion, any strengthening procuratorial organs prosecution discretion legislative efforts may not be able to really play a role, but the prosecution cheap socialist spirit in our country can not really realize its value, to achieve the purpose of legislation.