Font Size: a A A

On The Application Of Discretionary Non-prosecution System In Plea Guilty And Punishment Cases

Posted on:2023-11-09Degree:MasterType:Thesis
Country:ChinaCandidate:B ZhouFull Text:PDF
GTID:2556307043985029Subject:legal
Abstract/Summary:PDF Full Text Request
With the leniency system of debt deposit and punishment from pilot to criminal procedural law 2018 and with the gradual improvement of the application rate,combined with the rapid judgment and summary procedure,it can distract the complexity and simplicity of the case,which reduces the pressure in the process phase to a certain extent.In some cases,the prosecutor may not be willing to apply the judgment system,but it may lead to a milder application of the original judgment system to the prosecution of smaller cases.It is easy to label the perpetrator with "crime".At the same time,as a "fall filter",the discretionary non-tracking system should also play an important role for the purpose of the system.Both the leniency system of admitting guilt and accepting punishment and the system of discretionary non-prosecution play an important role in pretrial diversion.They are functionally consistent,and the leading organs are also procuratorial organs.At the same time,with the change in the criminal structure,it is necessary to investigate discretionary non-prosecution against the background of confession and punishment.At present,although the proportion of cases that do not apply the leniency system of confession and punishment has been less than 5%,in terms of the types of cases,what the system really plays the role of prosecution and defense consultation is the crime of sentencing a light sentence.In contrast,the discretionary non prosecution system,which is also applicable to minor crimes,has been floating around 5% in recent years.With the trend of minor crimes into punishment,the types of criminal cases have further changed.This makes the number of cases applicable to discretionary non prosecution far from the proportion of pleading guilty,pleading guilty and sentencing to minor punishment and single additional punishment.Combined with the discretionary non prosecution cases before and after the implementation of confession and punishment,this paper analyzes the application difficulties of discretionary non prosecution in the context of confession and punishment,mainly including the following difficulties.From the perspective of the system itself,the setting of the supervision mechanism of the system is unreasonable,there is a lack of disposal measures after non prosecution,and there is a lack of unified and clear application standards;From theperspective of the application of the system: the application proportion of the system is low,which is out of proportion to the number of people sentenced to minor punishment;The role of "case filter" that should have been played did not appear;The complicated examination and approval procedures lead the procuratorial organs to be more willing to "file a lawsuit";Lack of remedies for victims and non prosecution.Based on the useful experience of countries or regions with the same system,combined with the actual situation of our country,the following improvement path is proposed.In terms of system design,it is suggested to cancel the right of reconsideration and review of public security organs.Explore the establishment of a department with similar functions as the Japan procuratorial Review Committee within the procuratorial organ,which is specially responsible for reviewing whether the decision of non prosecution is in line with the procedure.The examination can be initiated either ex officio or on application,either on the application of the victim or the application of the person not prosecuted.As a result,it not only makes the supervision of the procuratorial organ’s discretion of non prosecution more reasonable,but also enriches the relief ways of relevant persons affected by the decision of non prosecution.It is suggested to refer to the domestic conditional non prosecution or the foreign investigation period system of deferred non prosecution,and rely on the relatively mature community correction to investigate whether the perpetrator really meets the standards of "minor crime" and "no penalty".It is suggested to refer to the Japanese prosecution hesitation system,so that prosecutors can independently enjoy the decision-making power of non prosecution,eliminate the complicated and unreasonable internal assessment mechanism of examination and approval procedures,and set up a special post in the procuratorial organ to make decisions without prosecution.At the same time,strengthen the publication and reasoning of documents of procuratorial organs,strengthen the openness of the hearing procedure of sorry litigation cases,and determine the selection of participants.By improving the path,improve the application rate of discretionary non prosecution under the background of guilty plea and punishment,improve its application procedures,and protect the legitimate rights and interests of relevant parties.
Keywords/Search Tags:Guilty Plea and Punishment, Discretionary non Prosecution, Pretrial Diversion, Review of the Necessity of Prosecution
PDF Full Text Request
Related items