On Special Protection Provided By Discretionary Non-prosecution To Juvenile Delinquents

Recently with the increasing of juvenile delinquent cases, the Juvenile criminal justice has become an important issue with a world wide attention. The root cause of juvenile criminality has been thoroughly analyzed, and the scientific humane perspective and criminality theory emerged, which therefore result in a trend across the world that the special need of the juvenile should be emphasized.With a view to providing special protection to the juvenile delinquents, the Chinese government established protection mechanism within the criminal law system as well as juvenile protection law system. Among them, the procedural rules are widely applicable and well tailored to the special needs of juvenile delinquents. Discretionary non-prosecution as an application of the principle of opportunity prosecution, can provide an effective protection and serve the interests and values of the legal system; furthermore, non-prosecution on a discretionary basis show the active role that the public prosecution can play in juvenile protection, which also deserves a close study.Although the Discretionary non-prosecution has a great potential, due to the underdevelopment of the juvenile judicial system and its inherent deficit in legislation and adjudication, the factual effect of this practice is far from success.The United Nations and its various agencies has laid down series of international justice standards which call upon states to enact national juvenile protection law and serve as guidelines in the specific case trial. The western states has been the leading force in the mission of special protection of juvenile for a quite long time, and milestone achievement has been gained in both substantive and procedural protection. It is true that the civil law and common law are different on the scope of the discretionary power of the public prosecution, however, the difference is on the modality rather than effect, and both of them are worth learning. Since the German-Japanese legal system highly influenced the Chinese legal system in its development, special attentions would be drawn to it in the process of lesson learning.Some Chinese scholars developed the mechanism of postponement of prosecution and carried out several pilot projects in this regard, which as a helpful exercise for aligning the discretionary non-prosecution principle to the Chinese national conditions, clear the way to apply this principle to the Juvenile cases at the legislative level. However, the effect of this legislative activity has not fully been recognized, and a theoretical analysis is also well deserved. In this regard, criminal reconciliation as well as other related mechanism should be established and improved, which is a must for bringing the theory of discretionary non-prosecution to a reality.