The Restriction Of Withdrawing Charges By Procuratorate

In the law, the right to withdraw the prosecution, since the 1996 Criminal Procedure Law,haven’t been recognized in the criminal legislation,while Supreme Procuratorate specified it in detail in the form of judicial interpretation. In judicial practice, the procuratorial organs exercise the right to withdraw sue in controversial cases one after another. These cases according to the different manifestations can be divided into 3 kinds as follows: backstroke, ending by giving up the prosecution, withdraw the prosecution by replacing the presumption of innocence. In these cases, some have been repeatedly prosecuted, some of the cases has seriously damaged the interests of the parties in the procedure.Therefore, the legal legitimacy of the right to withdraw sue need to be discussed urgently: In case of the lack of legislation, whether judicial interpretation of the provisions to set the right to withdraw sue is in compliance with the principle of legal procedure? Further it will produce what kind of impact to the prosecution and the defense equality ? So how, in the situation under existing legislation,to regulate the exercise of judicial practice of withdrawing sue in the prosecution ? This is the central issue to be discussed.Reflection on the withdrawal of the right to sue reveals that it does not only betray the principle of legal proceedings, but also fuzzy the right effect of the judge, imbalance the principle of equality of prosecution. Look on the prosecution to withdraw sue on legislation in other country it can be found: most of them have been defined in criminal legislation,and be strictly confined when being in effect.In deeper aspect,these regulation comply with the principal of the presumption of innocence and non bis in idem in the proceeding in order to achieve the purpose of protection of human rights.Therefore, the way of prosecutors withdrawing charges should be standardized.For the exercise of the right of withdrawal should strictly follow the relevant principles of criminal proceedings: Bis in idem, the presumption of innocence. In the specific procedures: Firstly, the procedural safeguards for the interests of the parties, in order to put an end to the phenomenon of withdrawal to avoid acquittal, withdrawal of consent should seek the agreement of the defendant; secondly, the effect and time limit of the withdrawal should be definite;Furthermore, in some cases,they need direct acquittal and finally, facing the expiration of the investigation, the case should be timely decided.