Research On Procedural Diversion In The Stage Of Prosecution

The Fourth Plenary Session of the Eighteenth Central Committee of the Communist Party of China adopted "the Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning the Promotion of Ruling of Law"(hereinafter referred to as the "Decision")and put forward the "reform of the litigation system centered on the trial." The purpose of the system reform is to change the focus of the criminal procedure from the investigation to the trial.The investigation and prosecution will be supporting work around the trial.The central position of the trial will be highlighted,solving the virtualization of trial and promoting its materialization and standardization.In view of the limitations of judicial resources,in order to promote the substantive and standardized trial and highlight the central position of the trial,it is essential to establish an effective criminal procedures diversion mechanism according to the circumstances and characteristics of the cases.Just as Chen Xiaodong said:"If we blindly put the same amount of judicial resources into each criminal case regardless of their complexity,there will be two consequences:First,those simple cases unnecessarily go through the complex litigation,resulting in the waste of litigation resources;second,those complex cases may not get fair and just results due to the relative lack of judicial resources.Therefore,it is a wise choice to allocate the corresponding judicial resources according to the specific circumstances of the cases,rather than letting each case mechanically undergo the three stages of investigation,prosecution and trial.That is,criminal cases must be diverted scientifically in order to achieve the trial-centered litigation system reform.The prosecution phase is the last hurdle before the case enters the trial,and the non-prosecution decision in this stage will substantially reduce the number of cases entering trial.In addition,with intention penalty and non-penalization theory gradually enjoys popular support,diversion during prosecution stage develops quickly.Judging from the current situation of our country,China's criminal litigation pursues the principle of legalization,the discretion of the procuratorial organs is small,and the diversion function of the prosecution stage is weak.Although our Code of Criminal Procedure stipulates the system of discretionary non-prosecution and c,these two systems can play a diversion effect in the stage of prosecution,they are deficient in judicial practices and paly no function in diversion.Therefore,it is necessary to make up for the shortcomings of the existing system,divert cases before trial in the form of non-prosecution,in order to achieve substantive trial and the goal of trial-centered reform.This paper is divided into four parts to explore the diversion mechanism in prosecution stage.The first part introduces the discretionary non-prosecution system and the conditional non-prosecution system stipulated in the current criminal procedure law,which have the function of diversion in prosecution stage.It focuses on the problems including the low application rate of the two systems,analyze the reasons including the law itself,the cumbersome procedures,the legal culture tradition and the impact of the assessment system;The second part elaborates the theoretical basis,the practice basis and the value analysis that gives the procuratorial organs the right of discretion and conducting diversion before trial in the form of non-prosecution.It mainly include the discussion of non-penalty thought,individualization of punishment,the criminal principle of combining leniency and harshness,the change of the crime,the litigation efficiency,public interest,human rights protection and other aspects of the argument.The third part mainly introduces the mature diversion systems in other countries,including the pre-trial diversion project of the United States,non-prosecution of misdemeanor system and prosecution retention system in Germany,and prosecution hesitation system in Japan,focusing on their the scope of application,the consideration factors and the supervision and restriction system.The fourth part puts forward the idea of perfecting the existing system in China from the two aspects of expanding the scope of diversion in prosecution stage and perfecting the supervision and restriction mechanism.