The Empirical Research Of Conditional Non-prosecution System

In 2012, the conditional non-prosecution system was formally established in the new of “Law of Criminal Procedure”. Previously, the conditional non-prosecution system existed as the judicial practical exploration in some areas, although the names of this system vary, they all take the save of involuntary criminal suspects as the starting point. The time limit is short from practical exploration to formal establishment of legislation to judicial practice, but the conditional non-prosecution system continuously follows the purpose of educating, influencing and saving the criminal suspects, and offers the involuntary criminals an opportunity to correct their misconduct. In 2012, “Law of Criminal Procedure” incorporated the conditional non-prosecution system into code, endowed with new connotation. Although there are only three clauses, the panorama of conditional non-prosecution system of China has been outlined. As a new system, the conditional non-prosecution, on the stand of the education, influence and save of juvenile criminal suspects, provides the solutions for the contradiction between limited criminal resource and high crime rate. When adhering to the criminal justice idea of “justice tempering with mercy”, the conditional non-prosecution builds the buffer zone between prosecution and non-prosecution, enriching the content of procuratorial organ's discretionary power. As well as combining with law, judicial interpretation, and provisions of the regulations, this paper takes the judicial practice in Honghe Perfecture, Yunnan Province as the entry point, and divides the body into three parts to make the corresponding interpretation of conditional non-prosecution system:The first part is about the practical difficult position in conditional non-prosecution system. This part mainly summarizes the typical problems of five aspects, combining with the judicial practice of conditional non-prosecution system in Honghe Prefecture, Yunnan Province, like low application rate, unclear orientation of the relation between conditional non-prosecution and discretional non-prosecution, applicable procedure with little justification, too single determination of probation period which fails to reflect specific case, the exploration, help and education become formalistic, which cannot play its proper system functions. The five aspects cover the most typical and outstanding problems existing in conditional non-prosecution system, all of which are carried out around the legitimacy of procedure and the effectiveness of system design.The second part is to analyze the causes of these problems existing in conditional non-prosecution system of China combining with the provisions of laws and regulations and the specifics of judicial practice. As for subjective factors, investigators have poor notion cognition, and fail to well understand the legislative intent of conditional non-prosecution system, resulting in the dissatisfaction for the application of conditional non-prosecution. As for the legislation, the incomplete stipulation for some concrete applicable problems in conditional non-prosecution system affects the exertion of its functions. Inadequeate staffing and role conflict result in a mere formality and investigation. Due to imperfect supervision and restriction mechanism, there is some space for abuse of power in the application of this system.The third part is to put forward the necessity of improvement and concrete measures for conditional non-prosecution system. The first is to start from the function orientation of conditional non-prosecution, analyze the value to improve the conditional non-prosecution system. The second is to put forward the concrete measures to improve the conditional non-prosecution system according to the existing problems, and mainly discuss on the five aspects like the scope of application, the orientation of the relation between conditional non-prosecution and discretional non-prosecution, the determination of probation period, the legitimacy of applicable procedure, and the mechanism of exploration, help and education, so as to put forward the concrete measures for improvement. In this part, the author absorbs the legislative and judicial practice for the conditional non-prosecution system of extraterritorial country of laws, and makes use of the advanced experience of extraterritorial country of laws to improve the applicable scope and legitimacy of applicable procedure for conditional non-prosecution system of China.