Study On The System Of Withdrawal Of Public Prosecution In China

As a dynamic procedure ,the criminal procedure is incognizable and changeable.Due to subjective and objective factors,facts of the case will change,the knowledge of facts of the case will also change.In judicial practice,after the prosecution,the prosecutors often find that the accuse is wrong and need to be modified.As an important part of the changing prosecution system,the withdrawal of public prosecution system is a progressive of the traditional theory of proceeding law.It reflects the discretion and initiative of modern public prosecution right, and will have a greater impact on the relationship between the prosecution and the judicial , have a great significance on the litigation fairness and efficiency ,and will have a major impact on the legitimate rights and interests of the parties .In view of the existence of this system has a profound theoretical basis and practical needs, there are specific provisions for this system in most countries and regions in the world .In China, the Criminal Procedure Law revised in 1996, repealed the provisions on the withdrawal of public prosecution system.However, the Supreme People's Court and the Supreme People's Procuratorate, and then introduced slightly rough provisions in the form of judicial interpretations on the system. The existence of these provisions are beyond the suspects of the legislative jurisdiction .More seriously,because of its general and unreasonable provisions, there have been many problems in the running of the right of withdrawal of public prosecution in practice,and has caused the abuse of the right of public prosecution and lack of protection of the legitimate rights and interests of the parties.Therefore, the judicial credibility has been greatly reduced,the judicial authority has suffered great harm too.By means of asking questions, analyzing problems, to solve problems,this paper discusses the problems and reasons of the system of withdrawal of public prosecution in China .At the same time,this paper probes the legitimacy of the existence of this system .Finally,this paper puts forward the shallow idea of how to perfect this system ,with a view that making this system more perfect toward the direction of legalization and standardization . This paper is divided into three parts:The first part of this paper puts examining and reviewing on the system of withdrawal of public prosecution in china.It makes an analysis of the legislative status of the system,and proposes five key issues of the running of this system in practice,such as,the time is unreasonable, there is no uniform standard of its exclusions,the legal instruments are irregular,to avoid an acquittal led to the abuse of withdrawal of public prosecution and the follow-up procedure of withdrawal of prosecution is disorderedand the judicial remedies are ineffective;After raising these questions,this paper analyzes the reasons of these issues from two aspects of institution and litigation philosophy.The second part of this paper put the fight of retention or abolition of this system as as starting point,and carries out some assessments on questions related to this system.As a basis for its legitimacy,this paper discusses its legal basis,such as the theory of human rights protection and litigation justice, the doctrine of economic litigation , the doctrine of separation for the prosecution and the judicial , the doctrine of free evaluation of prosecution and the prosecutor's objectivity obligation.The third part is the focus of this paper,the author puts forward the idea of improving the system from three major aspects.The first aspect is making this system legislated,which is the basis of the system improvement.The second aspect is specifying some procedural measures which include time and cases of this system ,and how to improve its supervision mechanism as well as follow-up procedures and remedies.Finally,the author puts forward two supporting measures for this system.