The Study Of Withdrawing Public Prosecution

Withdrawing public prosecution is a kind of action that procurator withdraw a criminal case from court, this action must be finished before the court made a judgment on the case, procurator have to list legal reason why he wants to give up the right of investigating the defendant’s criminal responsibility, and the court must check whether it meets the regulation of the law or not, and the than make a determination that permitting the procurator’s application or not. In China, the law of withdrawing public prosecution has past three stages, they are legal recognition, repealed when revising the law and confirmed in judicial interpretation. With the guide of judicial interpretation, the practice of withdrawing public prosecution is disordered. For example, procurator use the system of withdrawing public prosecution to avoid innocent verdicts, the procurator infringe the judge’s rights during they put the system into practice, judicial office adds much function to the system of withdrawing public prosecution, litigants’ rights are always violated in practice. Many jurists criticize this system, because it has no legal rules and the practice is disordered, and they insist on repealing it. However, they ignored the system’s basis in theory and practice. The system of withdrawing public prosecution is based on integrity of public prosecution rights, prosecutors’discretion, the principle of litigation-effective, and protection of human rights. It is also proved to be reasonable because the following reason: in practice, judicial office should correct mistakes actively, insist on the principle of separating the rights of prosecutors and judges, cover the shortage of the system of not to prosecute, and it is international trend that prosecutor have the right of withdrawing public prosecution. So, it is just right to find out the system’s defect and than remedy it through referencing other countries’experience.But how to perfect the system of withdrawing public prosecution, in my opinion, the time should be limited in the process of hearing in the first instance, we should take the way of "generally provide and list in detail" to limit the case which can be withdrawed from court, those cases should include over mistakes, program sanctions, criminal reconciliation, to protect national security and public interest, it’s not business about criminal execution, to protect some special interests. During the process of withdrawing public prosecution, the following matters should be emphasized:withdrawing public prosecution is only the procurator’s application, the court should make the last determination that allow procurator withdrawing public prosecution or not, litigants and public security organs have the right to restrict the procurator’s tight. In addition, it is objective need to restrict second accusation after withdrawing public prosecution.