The Study On The Prosecutorial Discretion

The prosecutorial discretion is not only an important part of the prosecutorial power, but also an important embodiment of justice.To fully exercise the discretion is good to the realization of the union of value of criminal justice and efficiency goals, good to safeguarding public interests and social stability, and also good to the protection of human rights. Nowadays facing that crime rate is rising increasingly, a serious shortage of judicial resources and the prosecutors of the grassroots prosecutorial organs arising , how to give full play to improve the procuratorial organs of the prosecution discretion and the efficiency of the proceedings ,are now becoming one of the major practical issues of the procuratorial organs.This paper discusses the discretion of the prosecution's fundamental principle, gives the details of the prosecution of foreign discretionary system, and analyzes the regulation of the Criminal Procedure Law of China and the relevant legal documents on the prosecutorial discretion, at last points out the insufficiency of discretion on china's criminal law, and concludes my personal recommendations. The article consists of four parts, in order which are discretionary powers and the prosecutorial discretion,the comparative study of the prosecutorial discretion ,the application of the prosecutorial discretion and the concept to improve the discretion.In the first part of my paper I compared the discretion of the different definitions of domestic and foreign jurists, abstracted the characteristics of discretion ,and described the definitions of the prosecutorial discretion. Then on the basis of this, I stated the nature, characteristics and theoretical value and significance of prosecutorial discretion . Finally I discussed the relationship with the opportunifatsprinzip and the prosecutorial discretion as the main thread running through the first part.In the second part I compared the legislation and implementation of prosecutorial discretion both through the civil law countries (such as Japan, Germany, represented) and the common law countries (such as Britain, the United States, represented). In this section I pointed out the differenence of the two discretions between common law countries and the common law countries,as named that the scope of the prosecution's discretion of the common law countries is more wide than that of the civil law countries, and the authority of prosecutorial discretion of the common law countries more higher than that of civil law countries,it is also a fact that in common law countries the prosecutorial discretion expresses a strong independence, fewer restrictions and constraints. Through the above comparison, I want to give my own constructive viewpoint to improve and inspire the study about it.The third major part of my paper mainly analyzed the application of prosecutorial discretion in china. This section pointed out that China's discretionary power only reflects a form of the relatively not prosecution, and introduced the legislation and the law resources of relatively not prosecution . In this section, I mainly analyzed the implementation of relatively not prosecution, noting the direction of how to complete and improve the prosecutorial discretion.The fourth part of my paperI discussed the relationship between the independence of prosecutor and the integrity of the prosecutorial power, and in this exposition on the basis of the my many years of work experience in the public prosecution, gave the advice about completeness of prosecutorial discretion in china (including improving relatively not prosecution , the suspension of prosecution, plea bargaining system, completing restraint relief mechanism of not prosecuting, improving the measures of implementation of not prosecution), with a view to the development of China's public prosecution benefit.