Discuss On The Expansion Of Non-prosecution Discretion In China

Non-prosecution discretion refers to the right that prosecutors given by law choose whether to prosecute or not according to their own understanding and judgment in accordance with the law and regulation in cases where the criminal facts are clear and the evidences are sufficient and which meet the legal prosecution conditions.From the perspective of judicial practice,among the three non-prosecution situations like legal non-prosecution,suspect non-prosecution and relative non-prosecution stipulated in the Criminal Procedure Law,prosecutors have the discretion only in the case of relative non-prosecution.Therefore,ultimately,non-prosecution discretion in our country mainly refers to the relative non-prosecution discretion.From the perspective of judicial practice,the non-prosecution discretion in all countries in the world is gradually expanding.However,in China,the non-prosecution discretion is much narrower than that in common law countries.In contrast,it is very limited and there are many defects and drawbacks which result in various restrictions on the right of prosecutors in judicial practice and is not conducive to flexible use in practice.Therefore,in order to effectively diverge cases,improve litigation efficiency and better implement the situation and policy of “justice tempered with mercy”,we should reasonably expand the non-prosecution discretion at this stage in our country by appropriately expanding the scope of application of relatively non-prosecution cases,appropriately expanding the scope of application of criminal reconciliation non-prosecution and conditional non-prosecution system,simplifying non-prosecution approval process,scientifically setting up the performance evaluation method,and expanding the independent handling right of prosecutors.