On Withdrawing Public Prosecution In China

Withdrawing public prosecution system is based on the right of action,it is a special form of public prosecution change,The theoretical basis is the theory of procuratorial discretion,the theory of litigation economy and the theory of complete prosecution right,showing a dual opposition in legislation and judicial interpretation,the legislation has not been clearly defined,While the Supreme People's Court and the Supreme People's Procuratorate have made detailed provisions in the form of judicial interpretation.Withdrawing public prosecution system is based on judicial interpretation,their legal status is low,the statutory withdrawal of the matter is too wide,the validity of the withdrawal of the prosecution is unknown,the withdrawal procedure lacks the participation of the parties,There is no reasonable restriction on withdrawal time.Under the guidance of the judicial interpretation of the withdrawal of public prosecution practice can be described as chaotic,controversial cases emerge in an endless stream.This article combines five typical cases of Xu Jingxiang,Liu Zhilian,Hu Dianjie,Li Zhuang and Yang Bo-tao,supplemented by statistical data,the operation of Withdrawing public prosecution has many problems : Prosecutor chose to withdraw the prosecution to avoid acquittal,There is a lack of justification for the withdrawal of the indictment,The Re-prosecution of Prosecution after Withdrawal.On the basis of the above-mentioned problems,some experts strongly advocated the abolition of the system of public prosecution.Withdrawing public prosecution system should be used as a criminal procedure and the mechanism of remedial mechanism,which is conducive to safeguarding the legitimate interests of the parties,saving the judicial resources and improving the efficiency of litigation.However,the practice has become a tool for the prosecution to manipulate litigation and avoid adverse results.The reasons,in addition to the legislative oversight,is mainly due to the performance appraisal mechanism and the trial to the impact of the centralized litigation model.To ensure that our procuratorial organs to withdraw the right to prosecute the exercise of procedures and standardization,we must first establish the principle of no matter how to implement the trial center doctrine.Second,the system into the legal system of the track to the rules of the specific operation of the system: a clear withdrawal of the prosecution of the scope of the case,including the absolute non-prosecution,the relative prosecution and jurisdiction of the situation,and the current judicial interpretation of the lack of evidence or The circumstances of the withdrawal of the evidence and the withdrawal of the two cases should be clearly abolished;clear withdrawal of the prosecution of the time limit and its legal effect;to strengthen the judge on the withdrawal of public prosecution review and control;construction retreat notice and defense mechanism to seek the views of the defendant and the victim;Establish a necessary relief procedure.