Conditional Non-prosecution Applicable Object Research

At the beginning of the 21 st century,the rapid development of China's economy has caused a series of social problems,one of which is the high incidence of juvenile delinquency.In response to this phenomenon,after pilot practice,when the Criminal Procedure Law was amended in 2012,a conditional non-prosecution system was established,which stipulates that minors may be suspected of some crimes,may be sentenced to a sentence of less than one year's fixed-term imprisonment,meet the prosecution conditions but show repentance.The procuratorial organ may make conditional non-prosecution.Since its formal implementation in 2013,the system has played a positive role in protecting the physical and mental health of minors,reducing the burden of litigation,and improving the litigation system in China.Especially,it provides a healthy legal environment for the life development of minors,which embodies the special preventive role of penalty.At the same time,in the course of more than six years' operation,the system has gradually shown some shortcomings.Among them,the controversy is that the object of application is narrow and the subject of crime is limited to minors,thus excluding all other criminal subjects with less social danger and lower subjective malignancy,and further restrictions are made on the charges and circumstances.Under such harsh conditions,the application rate of conditional non-prosecution system inpractice is low,which can not fully display its own advantages,and is not in line with the current advocacy of simple diversion and improving the efficiency of handling cases.At the beginning of legislation,it is understandable that legislators are cautious about a new system,but the legal system is constantly improving with the development of society.For instance,in the world,the applicable object of conditional non prosecution is not static.For example,the relevant systems of Germany,Japan and the United States also experienced a transition from special to general.Combining with the current penalty concept and the direction of criminal procedure reform,China can draw lessons from the experience of foreign related systems,properly expand the applicability of conditional non-prosecution system,and include the elderly,pregnant or lactating women,adult students in school with relatively small social danger and subjective malignancy.At the same time,it should be noted that although the above subjects of crime are included in the applicable object of conditional non-prosecution,they are not indiscriminate,but should be restricted from other aspects.For example,from the nature of the case,we can exclude some crimes that seriously endanger the state and public security,serious violent crimes,bribery crimes and malfeasance crimes;from the term of imprisonment,we can limit the penalty to less than one year's fixed-term imprisonment;from the attitude of subjective confession and repentance,we can exclude some recidivists,habitual criminals and subjects who refuse to admit crimes.In this way,we can not only expand the application of conditional non-prosecution,but also restrict the entry of some felonies and repeated crimes into the scope of application.In addition,expanding the applicability of conditional non-prosecution inevitably increases the discretion of procuratorial organs.It is necessary to combine the present judicial responsibility system to supervise and restrict the discretion of procuratorial organs so as to avoid abuse of procuratorial power.