Research On The Discretion Of Public Prosecution In Conditional Non-prosecution

Since my country’s Criminal Procedure Law gave the procuratorial agency the conditional non-prosecution discretion,the operation of this power has provided a new opportunity for pre-trial diversion.From the perspective of protecting minors,this article discusses how the procuratorial agency’s discretionary power of conditional non-prosecution should be implemented when minors are the subject of conditional non-prosecution in order to achieve the goal of educating and correcting minors involved in crimes..Adhering to the concept of decriminalization and non-penalization of minor crimes,the conditional non-prosecution discretion of procuratorial organs broadens the possibility of individualized treatment measures of"teaching instead of punishment".On the one hand,the conditional non-prosecution decision can effectively balance the relationship between judicial efficiency and judicial justice.While saving litigation resources,it also focuses on the realization of justice in individual cases.On the other hand,the conditional non-prosecution decision fills the gap between prosecution and non-prosecution,and its irreplaceable procedural value is of great significance for the treatment of juvenile crimes.Procuratorial organs correctly exercise the discretionary power of non-prosecution,which is not only an effective way to maintain judicial justice and enhance judicial authority,but also an inevitable requirement to protect the legitimate rights and interests of minors.From the perspective of conducive to the growth of minors,the procuratorial organ made a conditional decision not to prosecute the minors involved in the crime,which ended the litigation procedure,freed the minors involved in the crime from the label of "criminal" and passed the probation period.The investigation and supervision of the crime has allowed minors involved in crimes to change their minds with a sincere and contrite attitude,which not only contributes to the re-socialization of minor criminal suspects,but also prevents minors from re-offending,and ultimately achieves the unity of social and legal effects.At present,the conditional non-prosecution discretionary power of the procuratorial organ is still facing the dual obstacles of imperfect legislation and difficulty in judicial practice during its operation.In terms of legislation,the current law restricts the application conditions and scope of the conditional non-prosecution decision,and the regulations on social investigation,risk assessment,inspection and supervision,etc.lack operability,so that the procuratorial organs put the conditional non-prosecution decision on the shelf..Judicially,since the procuratorial organ does not distinguish between the assessment mechanism of conditional non-prosecution and other non-prosecution cases,the unified assessment mechanism has caused some procuratorial organs to abandon the application of the conditional non-prosecution decision in order to meet the assessment indicators.At the same time,due to the complicated non-prosecution decision procedures and the incomplete non-inspection work system,the procuratorial organs have limited the operating space of the discretionary power of conditional non-prosecution,resulting in a low rate of conditional non-prosecution.Based on the special protection of minors and the realization of the concept of restorative justice,the law of our country provides that the procuratorial organ has the right to make a conditional decision not to prosecute certain minor criminal suspects.The current application status of the procuratorial agency’s conditional non-prosecution discretionary power has not achieved the expected results.To strengthen the operation of the procuratorial agency’s conditional non-prosecution discretionary power,it needs to be improved from both legislative and judicial aspects in order to achieve the conditional non-prosecution discretion.The purpose of special prevention of prosecution.Of course,strengthening the application of the procuratorial agency’s discretionary power of non-prosecution does not mean that the procuratorial agency can exercise its power arbitrarily.In order to reduce the risk of abuse of power by the procuratorial agency,it is necessary to establish a complete supervision mechanism to impose conditions on the procuratorial agency.Non-prosecution discretion for effective supervision.In the process of exercising the discretionary power of conditional non-prosecution,the procuratorial organ should use legality,rationality,and proportionality as the discretionary benchmark to seek more possibilities for the fair operation of power.