Study On Improvement Of Conditional Non-prosecution System

With dramatic openness to the world in our country, the rapid economic andsocial development, the number of lawsuits expands rapidly, at the same time, thenumber of juvenile crime also rise rapidly. Given the mental immaturity of the minor,the minor trend to shape easily, then the Conditional No-Prosecution System cameinto being in China. It is Shanghai Changning District People’s Procuratorate that isthe first attempt to attach Conditional No-Prosecution System for an criminal case,which is the beginning of1992for an alleged theft suspects delay prosecution. Due togood social effects, and in line with our criminal policy of combining punishmentwith leniency, Conditional non-prosecution has spread and experimented nearly twodecades in China. And the applicable range is not just confined to the minor, thescope also expand to some vulnerable groups.Combined with years of judicial practice, the conditional non-prosecution systemexplicitly was written into the2012Amendment of Code of Criminal Procedure. Butlegislators behaved quite cautious, or even conservative on the newly introducedsystem. Therefore there is need for a careful analysis of this system. Considering theexperience from all pilots as well as the method of comparative law, this thesisexamines the inadequacies of the existing conditional non-prosecution system in the2012Amendment of Code of Criminal Procedure; and points out four inadequacies,that is the prerequisites to apply, the conditions attached, the supervisor of suspectsand the design of apply procedure; and learns from extraterritorial legislation, such asGerman, Japan, Taiwan and Macau, and the rules of the pilot areas. At last this thesisgives some improvement advice. In this paper, the text is divided into three parts: value analysis, existingproblems and improvement proposals.The first part is the value analysis of the conditional non-prosecution system. Tobetter refinement conditional non-prosecution system, it is necessary to explore thelegal basis of this legal system and the legislative purpose. The purpose theory ofpunishment had altered from doctrine of retribution-oriented punishment to purposetheory of punishment, which lead to Prosecutional Cheapness Theory that is thefoundation doctrine of conditional non-prosecution system, which reflects thelitigation efficiency, protection of human rights and the modesty of criminal law.The second part pointed out the problems of the conditional non-prosecution. thissection focuses on the problems of the existing conditional non-prosecution system,such as, the prerequisites to apply is not suitable; the conditions attached is too simple;the supervisor of suspects is not reasonable; and the design of apply procedure isdefective.The third part gived some improvement proposal on the problems referred in thesecond part. At first, the author analyzes whether the scope should be expanded andwhat is the extent to extend. Secondly, for the problems that the conditions attached istoo simple and is not specific enough. the author throws several specific suggestions.Thirdly, the author gives his own view on the problems that the supervisor of suspectsis not reasonable, focused on the discussion about the approach to inspect, the party tohold inspection and the term of inspection. Moreover, the author suggest that the partyto hold inspection should be altered from the Procuratorate to judicialauthorities.Finally, the author gives some improvement suggestions on the contractionof the applicable procedure in the conditional non-prosecution system, and suggeststhat an evaluation should be introduced and the procedures to dissent and solicitshould improve further.