An Empirical Research On The Criminal Reconciliation Problem Of The Prosecution Stage

This thesis includes three parts except for introduction and conclusion.The first part is the empirical survey of the criminal reconciliation in prosecution stage. First, in practice the successful reconciliation cases range widely, but the application rate is not high, and there still is vast room for improvement. As for successful reconciliation cases, most of them are based on certain facts and evidence. While there are different understandings on what extent that bases should reached to. Second, the criminal reconciliation in prosecution stage involves three modes. In practice, that the injuring party-the victim party reconciliate themselves is the most widely used mode. The mediation through investigating and prosecuting apparatus is not much and the people's mediation is least. Although rarely used in practice, the latter two modes were placed high expectations. Third, Laws do not clearly define the running process of the criminal reconciliation in prosecution stage. The investigating and prosecuting apparatus rarely take the initiative to inform the parties of the rights of reconciliation. Most people think that reconciliation should be initiated by one of the parties or by both parties. For reconciliation moderator, the ordinary people have natural trust and reliance on authorities handling cases. Considering various factors, the investigating and prosecuting apparatus lays hopes on other agencies. Most people hold that that lawyers involved in the reconciliation procedure is more advantageous, and this greatly contradict with the phenomenon of lawyers' low involvement in practice. Whether make settlement agreement is arbitrary for contractors and the agreement also lacks specification. Specific operational procedure of reconciliation is not clear, which can not provide clear guidance in the normal application of judicial practices. Fourth, the rate that successful reconciliation cases can be applicable to that of without prosecution in the stage of review and prosecution increased. But there is room for improvement. Fifth, In practice, the reconciliation method concentrated on financial compensation, which is too simple.The second part is about some problems in the criminal reconciliation in prosecution stage. In the scope of application, the implication of "civil dispute" is ambiguous, and "within five years once have committed a crime intentionally”, there are deviations in understanding. Furthermore, the narrow scope of the case regulated by laws does not adequately serve the needs of practice. In the aspect of agreement performance, too much emphasis is placed on financial compensation and the method is too simple. Meanwhile, there lacks standards on the amount of compensation and easily gives rise to phenomena like "wild speculations" or "spending money on punishment". As for Judicial operation, the prosecutor's awareness of applying reconciliation procedures is not enough. Worth still, the lack of harmonization of procedures makes it insufficient to guide specific operations of criminal reconciliation. Lawyers' low participation is not advantageous for protecting the legitimate rights and interests of the parties. In aspect of supporting mechanisms, current prosecutors docking mechanisms are inadequate and reconciliation is poorly converged. Finally lacking monitoring mechanisms is susceptible to corruption.The third part is the system perfection of criminal reconciliation in prosecution stage. First, in the scope of application, the qualifier "caused by civil disputation" is deleted and the scope of "once having committed a crime intentionally within five years” is re-defined. Reconciliation ranges of criminal cases are properly relaxed which includes the case that isn't caused by civil disputes, part of felony cases and violations of public-private mix of legal cases conditionally, so that the scope of cases that can not use the reconciliation is clarified. Second, improve the performance of the settlement agreement. Firstly, exploring all possible ways to perform the settlement agreement and performing it by stages or through several times or by labor compensation, restitution, etc. secondly, formulating standards of financial compensation reference to prevent reconciliation alienation. Thirdly, improve judicial operation of the criminal reconciliation in prosecution stage, which mainly includes promoting prosecutors' initiatives to apply criminal reconciliation, clearing basic procedures in the same criminal cases and increase the lawyers' participation in the criminal reconciliation procedures. Fourthly, improve auxiliary mechanisms of the criminal reconciliation in prosecution stage. In the beginning, establish an independent office of the criminal reconciliation and smooth docking prosecutors. Then establish record transfer of settlement cases and supervision mechanism such as the sampling visit to prevent the breeding of judicial corruption.