Research On Procedure Diversion Issues In The Stage Of Review And Prosecution

With the increasing amount of criminal cases and the ever-changing type and nature of crimes, it becomes less and less competent for limited judicial resources to find and investigate all the crimes. In the judicial practice, the organs of investigation, public prosecution, and adjudication tend to push the case processing time to the upper limit due to the problems of excessive cases and manpower shortage, which result in occasional occurrence of criminal cases that are illegally suspended for more than a decade. This problem causes the deficiencies in the accuracy and efficiency of the criminal justice of China, specifically manifested in the following: firstly, “extensive management” in the process of criminal justice, which means that the mechanism of false case precaution is in poor operation, and that the criminal justice “products” are not accurate enough; secondly, the low efficiency of criminal justice practice, which means that the contradiction between excessive cases and manpower shortage is becoming worse, and that the processing time of cases remains at a high level. Therefore, in order to relieve the stress of handling cases and address the problem of overly protracted cases, it is necessary to set up a diversion mechanism in litigant processes, such as investigation, review and prosecution, and court trial, to broaden the channels of case processing and improve the efficiency of litigation. This paper focuses on the stage of review and prosecution, which is a connecting link between the preceding and the following. Based on the case diversion mechanism and its practice in the stage of review and prosecution in other countries and regions, this paper explains the current situation, problems and reasons of case diversion in the stage of review and prosecution in China, and offers a proposal for the establishment of the case diversion mechanism in the stage of review and prosecution in China.Besides Introduction, this paper consists of three parts.The first part generally introduces the origin of the case diversion in the stage of review and prosecution. Technical terms, such as “diversion” and “procedure diversion”, are analyzed. The case diversion in the stage of review and prosecution is defined. The values of this mechanism are emphasized.The second part takes the example of J City Procuratorate, where I as the author work at, to analyze the common problems of the current situation of the case diversion in the stage of review and prosecution in recent years. This paper lays particular emphasis on typical diversion measures in the judicial practice in China, including discretion of non-prosecution, conditional non-prosecution, criminal reconciliation. Some problems and deficiencies of its application process, as well as the design and other deep-seated reasons for these problems, are identified.The third part is to put forward reasonable suggestions on the case diversion in the stage of review and prosecution. With the premises of analysis of problems mentioned above, pertinent suggestions are proposed from perspectives of defining applicable conditions of discretion of non-prosecution, simplifying application procedures, expanding the applicable scope and objects of conditional non-prosecution, expanding the applicable scope of criminal reconciliation, structuring a hierarchical selection mechanism of procedure diversion, and restraining discretion by the responsibility system of case-handling.