A Study On The Procedural Regulation Of Prosecutor's Discretion Of Non Prosecution

The decision of prosecutors to use discretion of non-prosecution to handle some criminal cases is the embodiment of implementing the economic principle of litigation,which can save judicial resources,improve the efficiency of litigation,and realize the balance between national interests and individual interests.With the increasing enrichment and perfection of the non-prosecution system in our country,the criminal policy of balancing justice with mercy should be implemented better.The prosecutor's discretion in non-prosecution should be expanded,which also puts forward higher requirements for the litigation democracy and open litigation in China.How to effectively restrict the power on the basis of expanding the discretion has become a difficult problem in front of us.At present,the exercise of discretionary power of non-prosecution is not ideal,leading to the non-prosecution system has not played its ideal effect and value function.For a long time,our country has been one-sided in the functional positioning of prosecutors.At the same time,facing the lessons of the system of exemption from prosecution in history,we have exercised relatively strict control over the discretion of prosecutors not to prosecute,as well as digital index restrictions,resulting in unscientific restriction mechanism.Add the standard of discretion fuzzy,maneuverability is not strong.The prosecutor's discretion not to prosecute is therefore a formality.In order to expand the discretion of prosecutors not to prosecute,it isnecessary to improve the standard of discretion based on the current problems and appropriately expand the discretion of prosecutors in handling cases.But power needs restriction and supervision to ensure its proper exercise.Therefore,it is necessary to construct a mechanism of restriction and supervision that conforms to the structure of litigation,and make it easier for the masses to supervise through the open reasoning of documents.This paper consists of five partsThe first part analyzes the application of the discretionary power of prosecutors not to prosecute in China from the perspective of practice,analyzes the problems existing in the discretionary power of prosecutors not to prosecute in China,and analyzes the theoretical basis of the problems,so as to make more targeted improvements in the future.The second part is from the theoretical point of view,analyzes why prosecutors enjoy the discretion of non-prosecution,its theoretical basis and criminal policy basis.What are the reasons why prosecutors,traditionally seen as criminal pursuers,now have to exercise their discretion not to prosecute.Based on the analysis of internal and external causes,the internal causes are the position of the prosecutor,while the external causes are the theoretical basis of the discretion of non-prosecution and the criminal policy of balancing leniency with severity.The third part mainly analyzes the scope of the discretion exercised by prosecutors in China,and makes a comparative analysis of the scope of application between China and other countries(regions),especially the countries(regions) of the continental law system.The scope of prosecutor's discretion not to prosecute in our country is relatively narrow.To improve the application rate of the right not to prosecute,the scope of discretion must be expanded.The fourth part mainly analyzes the discretion standard of the case.At the same time,it also introduces the standard of judging whether a case is not prosecuted in Japan,Germany and Taiwan.It is hoped that we can learn from their mature practices and improve the current situation where the discretion standard of non-prosecution in China is vague,so that the discretion of prosecutors can be more operable.The fifth part mainly discusses the restriction and supervision mechanism of the discretion of non-prosecution in our country,and finds that the restriction is unscientific,which leads to the limitation of the discretion of non-prosecution.By referring to the practice of other countries and Taiwan,this paper tries to provide Suggestions for establishing a scientific non-prosecution discretion restriction and supervision mechanism and standardizing its use.