A Study Of The Regulation Of Discretionary Criminal Non-prosecution

The discretion of criminal non-prosecution is a significant measure and mechanism for the procuratorial authorities to assume the function of crime governance as representatives of the public interest.With the further development of the concept of misdemeanour governance in China,the implementation of the judicial policy of "fewer arrests and careful prosecution",and the exploration of corporate compliance with non-prosecution reform,China’s criminal non-prosecution policy is quietly undergoing change.From a long-standing policy of "arrest if convicted,prosecute if guilty" and a judicial policy of strict control over the application rate of non-prosecution,to the gradual expansion and encouragement of non-prosecution,non-prosecution of misdemeanours has become the judicial norm."Power that is not subject to supervision and control inevitably invites abuse." In the gradual expansion of non-prosecution at the same time,how to regulate the proper exercise of the right not to prosecute,prevent the abuse of discretionary power not to prosecute and ensure fair prosecution has become one of the key issues of criminal non-prosecution.The expansion of non-prosecution in legislation and judicial practice has not been accompanied by fundamental changes in China’s criminal procedure law and judicial practice in terms of the mechanisms governing non-prosecution.China’s judicial experience and the world’s rule of law process have proven that the abuse of the right not to prosecute is inherently inevitable and a real possibility,and that improving the constraints and supervision mechanisms on non-prosecution is a necessary requirement for the expansion of the discretionary power not to prosecute.This article examines the regulation of the discretion not to prosecute as follows.First,it discusses the basis of the legitimacy of discretionary non-prosecution.The doctrine of cheap prosecution is a prerequisite for the regulation of discretionary non-prosecution;the doctrine of supervisory power is the basis of the rule of law for the regulation of discretionary non-prosecution;the doctrine of procedural constraintsis the basis of litigation for the regulation of discretionary non-prosecution;and the doctrine of rights and remedies is the procedural basis for the regulation of discretionary non-prosecution.Secondly,normative sub-permits and empirical studies were conducted on the discretionary regulation of criminal non-prosecution.The mechanism of restraint by the parties is ineffective,and the relief mechanism for victims and pursued persons is ineffective;the judicial restraint mechanism is missing,with insufficient procedural legitimacy and weak practical operability;the supervision by public security organs and supervisory organs is inappropriate;the internal control mechanism of the procuratorial organs is out of place,the supervisory function of the higher procuratorial organs is restricted,and the evaluation mechanism of the non-prosecution rate lacks normality;the external supervision mechanism is ineffective,the supervision of the people’s supervisors is arbitrary,and the randomness of the review of non-prosecution hearings is high.Finally,a system of regulation of criminal non-prosecution has been constructed.Considering the effectiveness of litigation and the protection of basic human rights,the internal and external supervision and control mechanisms have been continuously strengthened.By improving the procedures for parties to appeal and apply for private prosecution,establishing a pre-trial system for the courts,abolishing the public security organs’ powers of review and review,limiting the scope of application of the supervisory powers of the supervisory organs,improving the procedures for review of non-prosecution hearings,strengthening the online supervision of non-prosecution decisions,improving the internal control mechanisms of the procuratorial organs,and strengthening the judicial responsibility of prosecutors in the exercise of their powers,China’s non-prosecution system will be pushed forward steadily.