The Research On Criminal Discretion Of Non-Prosecution In China

Discretion of non-prosecution is a right of procedural disposition, which is conferred by law to prosecutors. It is a product of the doctrine of sues prosecution. This system has the protection of human rights, economic value. With the growing number of cases and the rising of non-judicial philosophy, countries have trend to expand the scope of discretion of non-prosecution. Although the Chinese Criminal prosecution is conferred by law to discretion of non-prosecution, the use of the right of procedural disposition is nearly in "idle" state. The reasons are the little scope of discretion, a single type, cumbersome application process, many restrictions and other reasons. In judicial practice, the application rate of discretion of non-prosecution is too low. It is uneconomic and fails to implement the temper justice with mercy in our country’s criminal policy. Current, Expansion of the discretion of non-prosecution is in the pipeline. In. the paper, the author analyzes China’s current reasons for the lower, then, proposes some specific ideas of extending discretion. Meanwhile, in order to prevent abusing of power, the author proposes that we should reform our current regulatory measures. The author wishes it will maximize the litigation value by the methods.The article has five chapters and six sections.The first section is foreword. This part introduces the author how to choose the subject and the purpose, train of thought, innovation shortage of research. Meanwhile, there is a literature introduce about Discretion of non-prosecution.Chapter 1 provides a brief overview the history and usage of discretion of non-prosecution of China. Then, comparing the applicability rate between our country and foreign, the author thinks that the biggest problem of discretion of non-prosecution is the lower application.Chapter 2 deeply analyzes the reasons which Chinese procurators lie idle the discretion. By analyzing, the author thinks that the reasons are both the legislation and cumbersome proceed, also, the influence of the concept of law and manmade non-prosecution rate under the administrative management. The proof standard of prosecution and trial are nearly the same. As long as procurator ate submits a case to the cour prosecutes, the court will convict. The procurator ate sticks the positive action policies and strategies-"prefer error nor indulgence crime"。Chapter 3 elaborates the necessity of expanding the discretion of non-prosecution in the current and the danger of expanding the discretion. The necessity mainly includes judicial economizing, mercy policy needs, and the international trend of expanding. The main danger is possible abuse and judicial corruption.Chapter 4 is the improvable constructs to the discretion of non- prosecution in China, putting forward to some measure such as broadening the applying scope, establishing reprieving prosecution system, cancelling the prosecution rate regulations, improving prosecution examination system, ensuring the independence of the prosecutorial power and giving the prosecutor to decide on the relative non-prosecution.Chapter 5 analyzes the problems of regulation measures about discretion of non-prosecution in China, puts forward to some reform proposals of perfecting restriction system, which are establishing of non-prosecution of hearing system, reforming restriction system of the Court, improving people’s supervisor system, improving the quality of the public prosecutor, changing conception and enhancing their handling capacity of the independent.By the analyzing the reasons, paralyzing China and foreign countries, the author try to find some reformation plans about expanding discretion of non-prosecution which appropriates China, in order to make the procurators fully and reasonably exercise the discretion, and reality the legislative value of discretion of non-prosecution.Limited by knowledge, so, some of my ideas were not mature. There is much room for discuses. I urge that experts and professors will criticize and put forward some proposals.