Research On Non-prosecution Restriction System

According to the development and rules of criminal procedure, China has established and further perfected the criminal non-prosecution system by amending criminal procedural law in 1996, and has gradually matched up with the international practice. One of the important symbols is the innate restriction to non-prosecution, which is to redress the wrongful non-prosecution decision made by the prosecution through statutory restrictions in order to ensure the defendants' rights and the realization of justice. Since the core of the non-prosecution system is a power not to prosecute derived from the public prosecution whose implementation not only can cause the termination of criminal prosecution, but also will affect the results of the cases, the supervision to the non-prosecution system shall focus on the enforcement of the power not to prosecute, so that the enforcement of this power follow the principle of "governing the state with law" and the basic theory of "statutory prosecution procedure assisted by simplified prosecution procedure". The present law of China prescribed the ways to redress the non-prosecution decision for the victim, the unprosecuted party, the police, the people's court and the people's procuratorate itself. This paper analyzes the various problems existing in present legal practice through the survey into the enforcement of several supervision and restriction means to non-prosecution as well as putting forward several proposals to further perfect the non-prosecution system in China after a close examination of relevant instructive foreign practice.The paper consists of four parts. The first part is to evaluate the merit of the non-prosecution restriction system. The supervision and restriction to non-prosecution can assure the precise and timely prosecution of criminals to the maximum. This can also help avoid effectively cases which should otherwise be prosecuted left unprosecuted. Meanwhile, it is also beneficial in making reasonable use of the legal resources and safeguard the citizens' legal rights and benefits.The second part will analyze the theoretical basis of the non-prosecution restriction system. First, the restriction to non-prosecution themselves are two important parts the prosecution supervision theory. Second, there are respective explanations for the two major theoretical bases of statutory prosecution doctrine and simplified prosecution doctrine. There is also a probe into the relationship between the discretionary power not to prosecute and simplified prosecution doctrine, indicating that the former is the important content of the latter and the introduction of the non-prosecution restriction system is exactly for restraining the misuse of prosecution discretion.The third part points out from the positivism point of view the problems in the practice of non-prosecution restriction system in present China. E.g., the victims' appeal is usually just a formality and can't be redressed. There are many drawbacks in the theory and practice of the transition from public prosecution to private prosecution: theoretically, there is a contradiction between the public prosecution power and the private prosecution power which causes theoretical confusion in the private prosecution system; practically, the victims' litigation burden is greatly increased so that human rights can not be protected to the full extent and it goes against the economical principle in litigation and the realization of effective restriction to public prosecution power. Besides, there are other problems in practice like the unprosecuted can hardly get self-redemption; the police's review does not exert its functions; and the vacuum in the restriction to the non-prosecution of self-investigated cases by the procuratorate.The fourth one sets out a preliminary framework to further prefect the non-prosecution restriction system in China. This paper endeavors to set up a relatively practical non-prosecution restriction system in China through a primary demonstration of a series of syst...