Operation Status Of Conditional Non-prosecution Discretion And Discussion On Its Monitoring Mechanism

The establishment of conditional non-prosecution system gives prosecutors greater discretionary power of prosecuting.As a discretionary power,it is of academic and practical significance to summarize the current status of China's conditional non-prosecution discretion and clarify the factors affecting the application of this system to ensure that the conditional non-prosecution is correctly applied.This article is mainly divided into four parts.The first part is an overview of conditional non-prosecution discretion.This part focuses on the connotation and characteristics of the conditional non-prosecution system,which expounds the theoretical basis of the system,such as the theory of special prevention,restorative justice and the doctrine of prosecuting discretion.It also expounds the economical principle of litigation and modesty of criminal law.The second part is about the situation and problems of China's conditional non-prosecution discretion operation.The establishment of conditional non-prosecution system enriches the types of non-prosecution power of procuratorial organs and further expands the judicial protection for minors.However,there are many problems in the application of this system in practice.Due to the fact that the provisions on conditional non-prosecution are too general and the applicable standards are not clear,this system is easily used selectively because of the differences in prosecutors' understanding.There are also problems such as large differences in the applicable proportion and uneven application of crimes in various places.In view of the coincidence of applicable scope between conditional non-prosecution and relative non-prosecution and the need for evaluation,conditional non-prosecution is often used beyond relative non-prosecution,which lead to a certain randomness in application of the two systems.Since the procedures for conditional non-prosecution are complicated and the social support system is imperfect,the applicable proportion and effect of the conditional non-prosecution are affected.The third part is an investigation of discretionary factors affecting conditional non-prosecution.The current status of the operation of conditional non-prosecution system also reflects that the application of the system is affected by multiple factors which are mainly subjective and objective.The prosecutor's personal knowledge and attitude on the conditional non-prosecution system and understanding of the difference between this system and the relative non-prosecution may affect whether they choose to apply the conditional non-prosecution or not.Meanwhile,juvenile criminal suspects and their legal representatives,victims,and participants in the supervisory inspection also influence the application of conditional non-prosecution.The conditional non-prosecution system and its supporting policies,conditions of help and education,and the attitude of the police can also influence the discretion process objectively.The fourth part is about the monitoring mechanism for conditional non-prosecution discretion.The end of this paper focuses on the subjective factors affecting the conditional non-prosecution discretion,making a discussion on the monitoring mechanism for prosecutors to exercise the conditional non-prosecution discretion,and conducting comparative studies on legislative cases.Combined with our existing monitoring path,we try to find a reasonable and effective monitoring mechanism for discretion and establish a discretion standard.