A Study On The Perfection Of The Discretion Of Public Prosecution In China

The legal mode of public prosecution and the mode of public prosecution come into being in the two legal systems.There are flaws in the system of public prosecution discretion currently in China.The effect of judicial practice is unsatisfactory,urgent need for further reform and improvement.Based on the analysis of the existence and value of discretion of public prosecution,and through comparative and practical research and other methods to explore the discretion of public prosecution,analyze the current situation and problems of China’s public prosecution discretion system.Learning from the advanced experience of western developed countries,propose the conception of perfecting the system of public prosecution discretion in China.The first part of the thesis gives a clear definition of the existence and value of discretion of public prosecution.Firstly,analysis on the discretion of public prosecution from the perspective of public prosecution right.Through the analysis of the connotation of public prosecution discretion,and according to the judicial practice,congnizance the meaning and nature of the discretion of public prosecution.Secondly,analysis on the value of discretion of public prosecution.The perfect operation of the discretion of public prosecution embodies the values of fairness and justice,litigation economy and special prevention.The second part of the thesis discusses the present situation and problems of the discretion of public prosecution in our country.Firstly,elaborate the relevant legislation of the discretion of public prosecution in China.Secondly,discuss the characteristics of the discretion of public prosecution in China.Lastly,this paper expounds the problems existing in the system of discretion of public prosecution in our country.It is found that there are some problems in the system of public prosecution discretion in our country,such as the narrow scope of application,the monotony of the category,the incomplete standard of the judgment,the complicated procedure of the exercise and the unreasonable restriction mechanism.In the third part of the thesis,the author makes a study on the discretion system of foreign public prosecution.At first,through studying the discretion of public prosecution in civil law countries,analysis the legal system of public prosecution in Germany,a typical country in continental law system countries.At second,through studying the system of public prosecution discretion in common law countries.analysis the cheap mode of public prosecution in the United States,a typical country in common law system countries.At last,compare and analvze the two modes.The fourth part of the thesis puts forward the idea of perfecting the system of discretion of public prosecution in our country.First of all,it is necessary to establish the principle of public interest,the principle of modesty,taking into account the principle of legal effect and social effect of the three basic principles.Secondly,this paper puts forward the scope of expanding the discretion of public prosecution in legislation,and puts forward some suggestions from the aspects of the applicable object and the system of public prosecution discretion.Thirdly,the paper puts forward the improvement of the procedure of public prosecution discretion,and proposes to increase the procedural restriction,to perfect the procedure of public prosecution to private prosecution,and to set up the internal examination and approval procedure scientifically.Finally,the paper puts forward the improvement of the restriction mechanism of the discretion of public prosecution.It suggests that we should set up the system of compulsory public prosecution,improve the system of people’s supervisor and set up the mechanism of public examination.