The Empirical Research On The Issue Of Conditional Non-prosecution

Since the system of conditional non-prosecution has been established in the country codelevel, applicable rate of the system in judicial practice is not high, which would requirecareful study. Since the new Criminal Procedure Law was put into force, relative researchesin China are almost confined to theoretical aspects and less in-depth practical point of viewfrom the empirical analysis of the problems and causes about conditional non-prosecution,besides ways to improve its applicable rate. Therefore, this article will carry on an empiricalresearch on the issue of conditional non-prosecution from the perspective of the grassrootsprocuratorate of Y District in C City, and find causes for applying difficultly, finally putforward relevant proposal.In addition to the introduction and conclusion, this paper is divided into four parts, with atotal of thirty thousand words.The first part discusses the operation conditions of conditional non-prosecution in thePeople’s procuratorate of Y District in C City. Based on research and successful cases inpractice, this section first makes a brief explanation of global condition of accepting andhearing the juvenile’s delinquency of Y Procuratorate. From2010to2013, the quantities andthe number of juvenile’s delinquency had a rising trend. In these cases, minor criminal casesaccount for above60%, and the rate of non-prosecution is relatively high. However, the casesapplying to conditional non-prosecution are rare. Then, from the case type, body ofapplication, period of investigation, the victim’s understanding, damages or compensation toshow the general running situation of conditional non-prosecution in the Y Procuratorate;Finally, it would summarize the practical effects combining with the cases. It is conducive tomodifying criminal suspects’ behavior, restoring social relations, implementing the criminalpolicy of combining leniency with rigidity, saving judicial resources and making up fornon-prosecution system.The second part uses specific cases elaborate the operational processes of conditionalnon-prosecution in practice, which is modelled on the Y Procuratorate. It mainly includes sixaspects: The appropriate basis of conditional non-prosecution primarily consists of four lawsand regulations. Its applicable scope is the juvenile suspects who could be sentenced to blowone year’s fixed-term imprisonment. The applicable procedures comprise startup program, decision-making procedure, inspection mechanism, prosecution-deciding procedure andremedy procedure. The additional conditions are that prosecutors can attach a variety ofconditions based on the actual situation of the suspect besides legal requirement. Then, it isabout the inspection mechanism, including the following: First, prosecutors are the body ofinvestigation; second, investigating method is that prosecutors can take sorts of ways forsupervision on the basis of the actual situation of suspects; third, the probation period shall bebetween six months and one year. Finally, once conditional non-prosecution takes effect, theinvestigation, prosecution and compulsory measures will be terminated. If suspects’properties are detained, they should be lifted and returned to owners immediately. But duringthe investigation, if violating the additional obligation, the investigated still face the risk thatconditional non-prosecution is revoked.The third part analyzes the problems and reasons in conditional non-prosecution’soperation of Y Procuratorate. There are four major problems which affect the system atpresent: Firstly, the application boundary is fuzzy between discretional non-prosecution andconditional non-prosecution. To be specific, minor degree of the criminal behavior in “neednot be sentenced to a punishment” and “need to be sentenced” is hard to be clear divided.Next, additional conditions of conditional non-prosecution lack effectiveness, and havearbitrariness. Then, it is short of investigation admonishment system, including three flowingfacts: First, overlapping responsibilities of inspection organs are embodied in excessiveparticipation and entrusting the statutory duty to others. Second, the contents of inspection arenot enough binding, fail to meet the characteristics of juveniles, and lack of psychologicalguidance for minors. Third, the inspection organizations are not enough positive andmandatory. Last, conditional non--prosecution is difficult to be applied to the migrantjuveniles.The fourth part throws out specific suggestions to improve the system of conditionalnon-prosecution, which is according to the third part. As the most significant part of thisarticle, this part, on the basis of analyzing and summarizing the cases of the successful reformhome and abroad, attempt to build a conditional non-prosecution mechanism which hasChinese judicial characteristics. Firstly,“Discretional Non-prosecution and ConditionalNon-prosecution” stepwise choice mechanism should be formed. The cases, that meet therequirements for both discretional non-prosecution and conditional non-prosecution, shouldchoose discretional non-prosecution preferentially; however, the cases that need long-term investigation consider the application of conditional non-prosecution. Secondly, setreasonable additional conditions. Primarily, setting principles must be rational, targeted andfeasible. Then, elaborated detailed rules from two angles. As to the case types, in allusion toviolent crimes, we should focus on psychological counseling for minors; and in allusion toproperty crime, we should focus on juveniles’ cognitive education. As to suspects’ individualcircumstances, in allusion to the difference of penitential attitude, criminal character andfamily environment, conditions should be set case by case. Thirdly, combined with thecommunity correction, a scientific investigation mechanism shall be set up from the followingaspects: the structural establishment of investigation, establishing duties for investigation,program design of investigation, the period of investigation&time arrangement, and theconsequences of the breach of investigation duty. Fourthly，the government could encourageenterprises to establish "the investigation base" through the tax preference policy, solving thedifficulty of migrant minors.