Research On The Problem Of Expanding The Exercise Of Discretionary Power In Prosecutorial Organs In China

With the proposal of comprehensively promoting the concept of governing the country according to law,the reform of the judicial system has gradually started from point to point and from top to outside in China,and the discretionary power of the procuratorate of China has been further expanded accordingly.The procuratorial organ's public prosecution discretion as a transitional power between the investigative power and the judicial power is an important part of achieving the streamlining and diversion of criminal cases and improving the efficiency of criminal litigation.Among them,the two aspects of prosecuting discretion and non-prosecution discretion as the issue of public prosecution discretion,although they show different characteristics in terms of specific operation a nd program control,they all play the same role of "filtering case".However,in fact,in the current judicial practice of prosecutorial public prosecution in China,there is a problem of excessive application of prosecutorial discretion and low application of non-prosecution discretion.In either case,the procuratorial organ's public prosecution discretion “re-indictment and lightness” "Do not sue",that is,it tends to crack down on the style of prosecution and handling of crimes.The most direct consequence of this is that in judicial practice,criminal cases,regardless of their severity or regardless of circumstances,are finally unimpeded and flowed into the trial of the court.Too much emphasis on prosecution,only paying attention to safeguarding judicial justice and neglecting the value orientation of judicial efficiency,has seriously affected the effective use of the criminal case of the procuratorial organ to exercise the power of public prosecution discretion,and the trial pressure of criminal cases has only increased.The trial of the "multiple people in the case" in the courts has intensified.This is obviously contrary to the original intention of promoting the expansion of public prosecution discretion and reducing the number of trial cases,reducing the trial pressure of cases,and effectively saving the allocation of criminal trial resources.In order to propose an effective strategy to change the status quo of "guilty and guilty" of "re-indictment and non-litigation",truly exert the role of magnifying the discretion of public prosecution to alleviate the problem of "multiple cases and fewer people" in court trials and fully and effectively use criminal litigation resources the goal of.Through the redefinition of the discretionary power of the public prosecution and the division of power,the paper examines the two aspects of prosecutorial discretion and non-prosecution discretion,and explores their respective operational patterns and problems in current judicial practice.It is found that the current actual situation of China's public prosecution discretionary power is far from the original intention of "expanding" development requirements.In-depth exploration of the relevant theoretical basis behind the expansion of the discretionary power of public prosecution,as well as the analysis of the practical experience of the current development of the prosecution discretion of the two major legal systems in the West,and finally the "professional absence" of the current expansion of the public prosecution discretion in China The issue of exercise,respectively,proposes procedural control measures to deal with it,in order to truly realize the purpose of magnifying and promulgating the discretionary power of the public prosecution,and to play its role in simplifying the diversion of cases and improving the efficiency of litigation.It consists of five major parts.The first part clearly defines the cognition of the discretionary power of public prosecution.Differentiating and defining the discretionary power of the public prosecution referred to in this article is not the same as the right to public prosecution.It specifically includes the principles of the two basic forms of prosecutorial discretion and non-prosecution discretion.Breaking the traditional practice of the study of the generalization of the discretionary power of the public prosecution,pointing out the ambiguous and unclear cognitive dislocations between the prosecutorial discretion and the non-prosecution discretion,thinking that the following article raises the problem,analyzes the problem and solves it in a targeted manner.The problem is paving the way.The second part puts forward the problems existing in the exercise of the discretionary power of public prosecution in China.In the course of the operation of the public prosecution discretion,there is a high prosecution status of “re-indictment and non-litigation” and the causes behind this status quo.Specifically,on the one hand,the application of discretion in the pr osecutorial discretion is too high,specifically in the proceedings,the high incidence of micro-crime prosecution,the high incidence of insufficient evidence,the high withdrawal of prosecution and the re-indictment of high-risk,etc.,and the respective causes behind these high-incidence;On the one hand,the application of the non-prosecution discretion is too low,and it is manifested in the discretion that the non-prosecution is applied too low,the conditional non-prosecution is too low,and the settlement is not applied,and the reasons for these are too low..However,the state presented by both parties together reflects the current value of the prosecutorial organ's “re-indictment and non-litigation” that emphasizes judicial justice and light judicial efficiency.Basically,the "filtering" value of the criminal prosecution and the efficiency of criminal litigation are not well promoted.The third part analyzes and explores the theoretical basis of the expansion of the discretionary power of public prosecution.From the theoretical level,we can comprehensively summarize the theoretical basis behind the possibility of expanding the discretion of public prosecution.In addition to the prosecution of cheap theory,penalized individualization theory and economic benefit theory,which is often discussed by most scholars,it also includes theoretical references such as prosecutor's objective obligation theory,litigation power theory and criminal policy mentioned by a few scholars.Through comprehensive summarization and summary of the theoretical basis for the expansion of the discretionary power of the public prosecution,we will provide sufficient theoretical support for the discussion of the effective extension of the public prosecution discretionary power in China.The fourth part is to examine the extraterritorial practical experience of the expansion of the discretionary power of public prosecution.It is found that the prosecution of cheapism as a key theoretical source of public prosecution discretion,although currently reflected in the two major legal systems,but the specific development situation shows a very different state.The civil law system is based on the principle of prosecuting statutoryism,with the exception of prosecution of cheapism,while the Anglo-American legal system is just the opposite of the principle of prosecuting cheapism and prosecuting statutoryism.However,such differences do not affect the public prosecution discretion in the world,and continue to show the trend of expanding development.It can be seen that in the process of reforming the judicial system in China,it is entirely possible to learn from the extraterritorial areas in combination with the actual situation to learn from the discretionary experience of China.On the one hand,it is necessary to expand the content of the discretionary power of public prosecution in a timely manner.On the other hand,it is necessary to find a correct way out in light of China's national conditions and coordinate the relationship between judicial justice and judicial efficiency.The fifth part puts forward the way out for the effective exercise of the discretionary power of the procuratorial organs in China.In the process of changing the exercise of the discretionary power of public prosecution in China,there is an extreme tendency of “re-indictment and non-litigation” and “guilty and guilty”,and procedural control measures are proposed in a targeted manner to solve them one by one.With regard to the problem of excessive application of the discretionary power,the procedural control measures to limit the excessive exercise of the prosecutorial discretion are proposed.Specifically,the post prosecutor can be prosecuted for the necessity of review,the micro-crime compulsory non-prosecution mechanism,and the lack of evidence to prosecute Correction assessment mechanism,restriction of withdrawal of prosecution and over-application of re-prosecution.For the application of the non-prosecution discretion,the procedural control measures for the effective exercise of the non-prosecution discretion are proposed,which can be simplified by appropriately relaxing the applicable conditions of the various types of discretion and non-prosecution procedures,simplifying the internal approval process without prosecution,and canceling the non-prosecution.Rate performance indicators and so on.In addition to this,it also supplements the supporting procedural control measures for the effective exercise of the public prosecution discretionary power,which can be supplemented by improving the relevant legislation and judicial interpretation of public prosecution discretion,strengthening the prosecutor's “three-dimensional” quality construction and exercising the public prosecution discretion.The supervision and restriction mechanism of public prosecution and so on.Through the analysis of layers,the author proposes appropriate strategies to transform the current high prosecution extreme tendency of “re-indictment and non-litigation” in the process of exercising the discretionary power of procuratorate in China,and promotes its normative and effective expansion to fully play its role.The case is complicated and diverted and the efficiency of litigation is improved.Criminal cases that are not necessary to be prosecuted should be diverted as much as possible without prosecution,avoiding such cases to occupy the judicial litigation resources,alleviating the long-term pressure of “there are many cases and fewer people” in the court's trial practice,and facilitating the court to spend a large amount of expenses on such cases.Judicial time,energy,and resources such as manpower and material resources are concentrated on solving major criminal problems such as time-consuming and labor-intensive problems.Under the premise of fully guaranteeing judicial justice and the legitimate rights and interests of the parties,the purpose of public prosecution discretion is to take into account the efficiency of judicial proceedings and save criminal litigation resources.