On The Prosecutor Not To Prosecute Discretion

In 1996, our country abolished the system of exemption from prosecution in the amended Criminal Procedure Law, expanded the scope of nol pros decision, and established the prosecutors' discretionary power to nol pros decision in some cases. The system of nol pros is the advanced process of criminal procedure, which is accorded with the principle of procedure economy, is beneficial to the protection of legal rights of litigants, and is confirm to doctrine of prosecuting discretion. However prosecutors' discretionary power is too simple and abstract to pratise in reality. So beginning with comparison between two legal families of foreign countries, this thesis analyzes the existing situation of nol pros in our country, expounds the defects on legislation, and brings forth the suggestions to perfect the system of discretionary decision to nol pros, with the purpose to practise the discretionary power in legal process more excellently.This thesis consists of five parts:Part I is the definition of discretion, discretionary power and discretionary power to nol pros. This part refers that the prosecutor' power to nol pros originates from doctrine of prosecuting discretion. Anglo-American law system regards the doctrine of prosecuting discretion as the basic foundation of prosecution, but Continental law system abides by doctrine of commencement of action by law in history, which realized the doctrine of prosecuting discretion from 20th century, and regard doctrine of prosecuting discretion as the necessary supplements to legality of prosecution.Part II analyzes the value of discretionary power to nol pros. The power is beneficial to lawsuit efficiency, besides the justice, which can prevent some unnecessary cases from entering to trial.Part III analyzes the relating legal regulations on the prosecutors' discretionary powerto nol pros, by method of comparison between two law systems, and different opinions andways, from three aspects of scope, discretion and system to regulate.Part IV analyzes the existing situation of nol pros in our country. Firstly, the thesisdefinites the scope of discretionary power to nol pros;secondly, it analyzes the legal effects ofdiscretionary power to nol pros;lastly, it introduces legal control to prosecutors' discretionary power to nol pros in our country, which includes reconsideration, appeal and private prosecution.Part V analyzes the restriction to the discretionary power to nol pros and the perfecting method in the recent PRC. Firstly, the author analyzes the defects the exiting system of discretionary power to nol pros in our country;secondly, the author suggests some perfecting ways to this legal power.