An Empirical Study On The Operational Mechanism Of Non-prosecution

The mechanism of non-prosecution operation is of great significance to implement the prosecutor's responsibility system for handling cases,ensure the quality of non-prosecution cases,guarantee the effect of non-prosecution,and realize the leading position of procuratorial organs before litigation.At present,the theoretical circle sorry about the operating mechanism is still lack of in-depth research.How to set up a good operating mechanism to give full play to the non-prosecution system is also a question that the procuratorial organs have been exploring constantly.Therefore,based on the research on the status quote of non-prosecution operation mechanism of grassroots procuratorates in municipal areas of G province and C city,this paper analyzes the existing problems and causes of non-prosecution operation mechanism in practice,and proposes Suggestions for improving the non-prosecution operation mechanism based on the found problems.It is expected that the study in this paper will be helpful to improve the mechanism of non-prosecution operation.In addition to the introduction,the text is divided into three parts,the full text about 26,000 words.The first part analyzes the status quote and existing problems of the non-prosecution operation mechanism of the grass-roots procuratorates in municipal districts of G province C.The operation mechanism of non-prosecution can be divided into program participation mechanism,decision-making mechanism,supervision and restriction mechanism and effect guarantee mechanism.The procedural participation mechanism is mainly to ensure that the investigation organs,criminal suspects and their defenders,victims and their litigants can effectively participate in the decision-making of non-prosecution,so that all parties can fully play their roles and ensure the quality of cases.In practice,whether these three kinds of subjects can effectively participate in the non-prosecution procedure depends entirely on the attitude of procuratorial organs.Procuratorial organs often regard them as sources of evidence,and involve them in the significance of verification of evidence rather than the participation of safeguarding procedures.Their participation can hardly have a substantial impact on the decision-making of procuratorial organs.The decision-making mechanism mainly includes the power distribution among decision subjects,decision procedure setup and personnel allocation.In practice,there are two main problems in the decision-making mechanism.Prosecutors who are the examiners of the case do not have thecomplete right not to Sue,while the attorney-general or the procuratorial committee,which has the right,does not review the case directly.The other is to set up the procedure of examination and approval in practice.The supervision and restriction mechanism is mainly divided into external supervision and internal supervision.External supervision mainly includes the reconsideration and review of the investigation organs,the appeal of the non-accuser and the victim,and the supervision of the people's supervisors.In judicial practice,the effect of external supervision is not obvious.Internal supervision mainly includes the supervision of the superior procuratorate,the supervision of the case management department and the supervision of the assessment mechanism.The supervision of the superior procuratorate is mainly based on passive supervision,which is very limited to the subordinate.The supervision of the case management department can only be limited to formal supervision.And the unreasonable assessment mechanism greatly restricts the development of the great complaint system.The purpose of the effect guarantee mechanism is to realize the legal effect and social effect of non-prosecution system.However,the effective guarantee mechanism in judicial practice is not ideal,and the social contradictions are not resolved effectively.These problems also result in that the effect of great complaint cannot be effectively guaranteed,thus affecting the realization of the function of non-prosecution system.The second part analyzes the causes of the existing problems of non-prosecution operation mechanism.In terms of program participation,there is no specific provision in the law of the investigation organ participation,for the participation of the provisions of the criminal suspect and the victim is also relatively principle,combined with investigation v.cooperation consciousness is not strong,the criminal suspect "objectification" status are not fundamental change,as well as the protection of the victim consciousness weak,participate in degree and the effect of other subject.In terms of the decision-making mechanism,the procuratorial organs implement the system of the chief procurator responsibility,which leads to the emergence of this decision-making mechanism in judicial practice.At the same time,due to the influence of the judicial concept of one-sided crackdown on crime,the judicial practice has set up a tedious approval process to control the application of non-prosecution.There are mainly three reasons for the poor supervision and restriction mechanism.First,the supervision of the people's procuratorate at the higher level is passive,and the "cooperative" relationship between the higher and lower levels of the procuratorate makes it difficult to effectively realize its supervision.The other is the dilemma of external supervision.Although the investigation organ,the person who is not accused and the victim have the right to supervise and object to the decision of the procuratorial organ not to prosecute,the final decision is still in the hands of the procuratorial organ,which leads to the rigidity of externalsupervision.Thirdly,blind and arbitrary supervision by the investigation organs makes the supervision effect not obvious.Fourthly,the lagging nature of post-mortem supervision makes it difficult to change the decision of procuratorial organ not to prosecute from the essence.In terms of the effect guarantee mechanism,the reasons leading to the poor effect guarantee mechanism are as follows.It is mainly embodied in that the procuratorial organs attach importance to prosecution but neglect the influence of the idea of non-prosecution and their "non-subjectivity" in the process of effect guarantee,which leads to the lack of intrinsic motivation of procuratorial organs.Second,external supervision lacks rigidity.Procuratorial organs lack a rigid supervision mechanism for external subjects to perform the function of effect guarantee,which makes it difficult to effectively realize the effect of guarantee,and also,to a certain extent,weakens the enthusiasm of procuratorial organs.The third part puts forward the suggestion of perfecting the operation mechanism of non-prosecution.First of all,as for the implementation of the participation mechanism of procedure,the participation scope of the non-indictee can be appropriately expanded,and the open review system of non-prosecution can be further promoted,so as to comprehensively improve the depth and breadth of the decision-making of the investigators,the non-accuser and the victim.Secondly,as for improving the decision-making mechanism of non-prosecution,it is suggested that the right of non-prosecution should be fully delegated to prosecutors,the restriction on the exercise of powers should be reduced and the approval procedure should be simplified.Meanwhile,the role of joint meetings of prosecutors in decision-making should be enhanced to ensure the correctness of non-prosecution decisions.Thirdly,in terms of improving the supervision and restriction mechanism,the accountability system for handling cases should be further improved to ensure the effective restriction on public procurators after the decentralization of power,at the same time,the unreasonable assessment system should be improved,and the restriction on the refusal of the investigative authorities to prosecute should be improved.Finally,as for the innovation effect guarantee mechanism,the interpretation and reasoning of non-prosecution should be standardized,and a connection mechanism and post-control measures should be established with administrative organs to handle non-prosecution cases,so as to guarantee the realization of legal effect and social effect of non-prosecution.