The Research On The Issues Of Withdrawing Criminal Public Prosecution

The exercise of the power of withdrawing criminal public prosecution, which is an indispensable part of the power of prosecution exclusively exercised by the prosecuting authority according to law, has a great impact on the pursuing of efficiency and could brought the discretionary power into full play. The corresponding withdrawing mechanism is designed to initiatively rectify any errors in the already filed prosecution by the procurator. However, the academic discussion over the legitimacy and justification of such power is still in controversy. The specific design and arrangement of the institution is still comparatively superficial and exists lots of problems need to be perfected. In this connection, the author hope the research over the system of withdrawing criminal public prosecution in terms of legislation evolution, status quo, comparative study as well as the perfection and reform suggestion to the mechanism can provide reference to the legislative amendment of the Criminal Procedure Law and relevant judicial practice in the future.The thesis is divided into four chapters to carry out the theoretical analysis and systematic research.Chapter one will study the legislation and statue quo of the system of withdrawing public prosecution by explaining the differences among the 1979 Criminal Procedure Law, 1996 Criminal Procedure Law, the Interpretation on Issues related to the Application of Criminal Procedure Law released by the Supreme Court, the Criminal Procedure Rules and the Guidance over issues of withdrawing public prosecution launched by the Supreme People's Procuratorate. The legislative changes lead to judicial dilemma in respect of legislative defect, willfully application, lack of supervision, abuse of power, infringement of judicial power, poor reasoning, etc.Chapter two will analyze the justification and reality needs of the system of withdrawing public prosecution by pointing out the system as the characteristic of the exclusive power of prosecution is not only required by the litigation structure of departing prosecution from justice and the doctrine of free evaluation prosecution, but also manifest the legal supervision responsibility of the procurator and the multi-value pursuing of the criminal procedure. As the procedure will be terminated after the public prosecution been withdrawn, the system shall be perfected in both theory and legislation terms.Chapter three will study the relevant laws and regulations over the system of withdrawing public prosecution by comparison method in different countries and areas from both civil law and common law system, for instance Franc, Germany, Japan, the United Kingdom, the United States as well as Taiwan. In spite of the discrepancy of specific design and arrangement among those countries and areas'institutions, all have launched respective control mechanisms to ensure proper prosecution. However, no corresponding procedure undertaking such duty exists in china. For the sake of consummation of system of withdrawing of public prosecution, it is necessitated to draw excellent experiences and absorb what is advanced in other civilizations.Chapter four detailed the discussion over suggestions on how to reform and consummate the system of withdrawing of public prosecution in china. First, amendment to the Criminal Procedure Law shall be carried out to adopt the system. Second, the scope of application shall be expanded. Third, the specific operation procedure shall be further standardized in terms of subject, phase, reason, legal effect etc.. Four, the restriction mechanism including internal examination and approval by prosecuratorate and external judicial review by court shall also be intensified. The defendant and the victim shall be entitled to corresponding remedy rights. Last but not least, prosecution after withdraw must be closely confined so as to prevent the possibility of abuse of the power and ensure the efficiency and impartial operation of the power.