The Research Of Conditional Non-prosecution System In China

Conditional non-prosecution system originated in Germany and Japan, and thelegislation that was first established in the two countries, after the development hasbeen improved in the United States and Taiwan, China has become a shaping criminalregime. In Western countries, it is called "prosecution hesitate system" or "deferredprosecution", prosecutors usually a reflection of discretion, but also the doctrine ofprosecution, Modesty idea of criminal law, as well as the concept of restorativejustice a concrete expression. Objectively, with conditions not to prosecute criminalcases triage system reached, saving litigation costs, improve litigation efficiency. Ourcountry began in the nineties the conditional non-prosecution related to exploration.After twenty years of accumulation, in the new "Criminal Procedure Law" enacted in2012, formally established the conditional non-prosecution system, which is a majorhistorical progress of criminal proceedings. However, with conditions not toprosecute legislative provisions and principles of the system are too abstract, leadingto the following problems still exist in judicial practice specific application process:Scope object and apply conditional non-prosecution is too narrow; inadequate socialsurvey to assess the prosecution; obligations and conditions applicable provisions aretoo abstract, good grasp; prosecutors decided internal procedural requirementsimperfect; admonishing minors during the investigation of the mechanism is notperfect, and so on. Limitations of legislation led to conditional non-prosecutionresults in practice greatly reduced. In this regard, in order to make the conditionalnon-prosecution system to maximize efficiency, the following aspects need to attachconditions to improve the system not to prosecute: the expansion of conditionalnon-prosecution and penalties applicable object amplitude range; more specificallywith conditions not to prosecute "Specific Conditions"; a clear decision conditionaldecision not to prosecute the subject and the decision-making process; not toprosecute before the applicable conditions attached to adequate social assessment;establish a sound mechanism to investigate helpers.