The Enlightenment And Reference Of Procedure Diversion In Examination And Prosecution Stage Of Japan

In order to alleviate the contradiction between the shortage of judicial resources and the increasing number of criminal cases,and under the influence of judicial concepts such as the individualization of judicial treatment,many countries have explored the diversion of procedures in the process of review and prosecution.It has become an effective means to improve litigation efficiency,optimize the allocation of judicial resources and resolve social contradictions in a timely manner.The procedural diversion in the stage of review and prosecution is based on the recognition of the doctrine of cheapness of prosecution and has the characteristics of discretion.Therefore,under this definition,the main way for Japan to divert the procedure in the stage of review and prosecution is through the system of prosecution hesitation,which stipulates in Article 248 of the current Criminal Procedure Law.In our current legal system,we mainly rely on discretionary non-prosecution and conditional non-prosecution system to divert cases.At the same time,we adopt relevant measures such as criminal reconciliation and confession of guilt and punishment to promote the realization of diversion of procedures.Japan has diverted more than 50% of cases in the review and prosecution stage.In contrast,many Chinese scholars point out that the stage of review and prosecution in our country has not fully played the role of connecting the preceding and the following and filtering cases.Based on this gap,this paper mainly studies the procedural diversion in the stageof review and prosecution from the perspective of comparison between China and Japan.The introduction is the reason why the author chooses procedural diversion in the stage of review and prosecution as the research object.The main body is divided into four parts: Chapter 1 is the construction basis of procedure diversion in the stage of review and prosecution.It mainly includes two parts: theoretical basis and realistic demand.The former includes modesty,individualization of judicial treatment and restorative judicial concept.The second chapter mainly introduces the legal system and judicial practice of the procedure diversion in the stage of review and prosecution in Japan.Among them,prosecution hesitation is the basic system,and in order to avoid the abuse of prosecution authority,procuratorial review meeting and trial system are set up to restrict it.The author also makes a statistical analysis of the general trend of procedural diversion in Japan in recent years based on the relevant data.According to the views of relevant scholars,this paper summarizes the "bottleneck" of the procedure diversion in the stage of review and prosecution in Japan.Chapter two mainly discusses the diversion of procedure in the stage of review and prosecution in China,including the historical evolution,current mechanism and operation status.From the perspective of comparison between China and Japan,this paper analyses the problems and weaknesses of the low proportion of procedural diversion in the stage of review and prosecution in China.Chapter IV mainly aims at the problems mentioned above and draws lessons from Japan's experience.It puts forward its own views and Countermeasures on improving the procedural diversion in the stage of review and prosecution in China.In the concluding part,the author makes a brief summary of the full text,and wishes the development of procedural diversion mechanism in the stage of review and prosecution in our country more and more perfect.