Study Of China’s Conditional Non-prosecution System

In 2012,the conditional non-prosecution system was established in the Criminal Procedure Law.Since then,China’s theoretical circles and judicial practice circles have carried out many discussions on this system,and have also obtained certain research results.However,in general,the current academic research still has problems such as scattered content,fragmentation,and disconnection from judicial practice.Therefore,it is necessary to explore and analyze the effect,problems and corresponding improvement of the system from the perspective of theory and practice.This paper starts with the basic overview of the conditional non-prosecution system,and analyzes the applicable mechanism of China’s conditional non-prosecution system,and analyzes and reviews the relevant legal provisions of China’s conditional non-prosecution system from the perspective of normative research.This paper probes into the current situation and causes of the operation of China’s conditional non-prosecution system from the perspective of empirical analysis.And the paper proposes a concrete concept for perfecting China’s conditional non-prosecution system on the basis of comparison with similar systems such as suspending prosecution in other countries and regions.The thesis consists of six chapters.The first chapter is an overview of the conditional non-prosecution system.Firstly,this chapter expounds the connotation and characteristics of the conditional non-prosecution system,and introduces the content system of the system from the aspects of the decision subject,the applicable case and the scope of the object.The second part of this chapter sorts out the development of conditional non-prosecution system from the perspective of historical evolution,and summarizes its production and development characteristics.In addition,the chapter also discusses the differences and linkages between the system of conditional non-prosecution and statutory non-prosecution,discretion and nonprosecution.The second chapter mainly expounds the applicable mechanism of the conditional non-prosecution system,including the theoretical basis and policy background of the system construction.From the change of retribution penalty theory to the preceptive punishment theory,the opportunity and motivation of the development of conditional non-prosecution system are given to a certain extent;the theory of public prosecution has also enriched its connotation in the long-term development,and the inherent malpractice of prosecuting statutoryism provides opportunities for the emergence of cheapism.At the same time,the connotation of the discretionary power of the procuratorial organs has also been enriched and developed.Under the theory of litigation economy,there are also outstanding problems in the confrontational trial.The reasonable pre-trial procedures are used to rationally divert minor criminal cases because of the limited judicial resources.In addition,the conditional non-prosecution system is also the embodiment of the criminal law moderation theory in the judicial field and meets the requirements of restorative justice.In terms of criminal policy,China has implemented the criminal policy of "tempering justice with mercy" for a long time and,in the long-term practice,summed up the corresponding criminal policy of minors.The application of the conditional non-prosecution system not only carries out related work under the guidance of criminal policies,but is also deeply reflected in the current criminal policy to a certain extent.The third chapter analyzes and examines the relevant legal provisions of China’s conditional non-prosecution system by means of normative analysis.The Criminal Procedure Law of 2012 established the conditional non-prosecution system for minors in China,and the relevant judicial interpretations continued to enrich the basic content of the system.However,in general,the relevant legislation on conditional non-prosecution system is conservative: there are narrow defects in the scope of application.From the perspective of long-term development of the system,it is necessary to appropriately expand the scope of application of the system.There are still problems in the interpretation of "repentance performance",etc.There are deficiencies in the content of investigation and the control mechanism.In terms of the content of the investigation,there are also problems.Regulations are not clear and cannot accurately guide the practice and application.The relevant provisions of the conditional non-prosecution system also have provisions or omissions in the aspects of the opposition rights of the relevant parties,the relief channels of the victims and the construction of relevant supervision mechanisms.The fourth chapter introduces the status quo and experience of the conditional non-prosecution system from the perspective of comparative analysis.This chapter selects the typical countries and regions in the common law system and the civil law system,and introduces the typical systems,including the UK’s conditional warning system,the US pre-trial diversion system,Germany’s conditional non-prosecution system,and the hesitant system of prosecution in Japan and the system of prosecution in Taiwan.The above-mentioned different systems have both progress and deficiencies.It is not difficult to find that the United States and Japan have no restrictions on the scope of application of the case,while Germany,a typical country of the civil law system,strictly limits the scope of application of the system to minor offences.Compared with civil law countries(regions),prosecutors under the Anglo-American legal system have greater discretion,and the exercise of this power will undoubtedly help the development of the system.In terms of the effectiveness of the system,except for the uncertainties that Japanese law requires the prosecutor to be prosecuted at any time,most countries(regions) recognize that the system has the effect of blocking further prosecution.In addition,the ex-perfect relief mechanism generally established by all countries(regions) is worth of learning.The fifth chapter adopts the method of empirical research,combines the judicial practice of our country to expound the status of conditional non-prosecution system,and analyzes the problems existing in the operation of the system.The article combines the application of the conditional non-prosecution system by the procuratorate of Liaoning Province since the implementation of the Criminal Procedure Law of 2012.Through the data summarization and analysis,the problems in judicial practice are found.Data analysis shows that the number of conditional non-prosecution systems is low in practice and the proportion is low.When there is a conflict with relative non-prosecution and prosecution,there is no clear standard for the procuratorate to choose.There are many reasons for the lack of application of conditional non-prosecution in judicial practice.Due to the imperfect construction of related systems,it may require more manpower,material and financial resources in the application process,which leads to the application rate is not high in practice.The business evaluation mechanism and the investigation mechanism of the wrong case also limit the promotion of the system by the procuratorial organs to a certain extent.In addition,there are conflicts with the applicable ranks of other systems,and the implementation of the help system is not effective,etc.So the prosecution system is struggling at the practical level.The sixth chapter discusses the approach and related suggestions for the disadvantages of conditional non-prosecution system in China discussed in the third chapter and the fifth chapter.It mainly includes: from the perspective of normative analysis,it explores the space for improvement of the conditional non-prosecution system in terms of the scope of application,such as the scope of the case,the applicable conditions and the content of the investigation,and proposes relevant constraints and relief mechanisms for the construction of the system.Improve the opposition rights of relevant parties,provide rights protection measures for their objections,and improve the remedy approaches relief for victims.From the perspective of empirical analysis,this paper puts forward corresponding suggestions for the problems of small quantity and low application rate of the conditional non-prosecution system in the judicial practice in China.Change the business appraisal mechanism of the procuratorate,construct a reasonable investigation mechanism for misjudged cases,complement the help system and the perfect social investigation system,and promote the conditional non-prosecution system to play its due function.At the same time,establish a public hearing procedure to ensure that justice in the conditional non-prosecution system is realized in a visible form.Prevent judicial corruption and abuse of power,and combine the current hot spot reform situation to establish a reasoning system and promote the development of conditional non-prosecution system.