Research On The Scope Of Conditional Non-prosecution

Conditional non-prosecution system, also called Reprieving prosecution system,has been introduced into the Criminal Procedure Law of Japan, Germany, the UnitedStates and many other countries and regions. All the provisions have broad scope,which is the most in Japan. It was favored by academia, because it can be savejudicial resources, improve judicial efficiency and balance interests of all parties.Before the promulgation of the new Code of Criminal Procedure, many scholarshave proposed to introduce it to the Criminal Procedure. Even some publicprosecution authority had a precedent in judicial practice. Although because ofviolation of the law has soon been halted, study the conditional non-prosecutionsystem in future left a valuable asset. After the promulgation of the new Code ofCriminal Procedure, it established our system of conditional non-prosecution, but thescope was limited to the applicable provisions of the minors, not as the majority ofour scholars proposed requirement that the object should be criminal suspect who"may be sentenced to fixed-term imprisonment of not more than three years". Fromcase studies and comparative study of extraterritorial laws, it can be drawn that theconditional non-prosecution system scope is designed too narrow so that can’tachieve the desired results. It’s too conservative to restraint its economic advantagesand highlight its program design hierarchy.First appearance of Conditional non-prosecution in our country, completelyshows care for the minors and pity of procuratorial organs, and it can saying thepractice forced legislation reform, so the applicable scope of Conditionalnon-prosecution of Criminal Procedure Law in2012is narrowed to the minors. Butlawmakers should have a more long-term and realistic vision, actively investigateabroad system about the design idea, factors, application background and conditionsof Conditional non-prosecution system, construct and improve it based on judicialpractice in our country. In recent years, the crime rate is rising in our country, and allkinds of new type of crime, juvenile crime and recidivism rate is rising year by year.In this case, the judicial system bears heavy burden, judicial resources is very short, and judicial organs is under pressure, so diversion program setting is necessary.Conditional non-prosecution system can not only let some case out of criminalprocedure in the prosecution stage, saving the subsequent trial and detentionproceeding, greatly improving the judicial efficiency, but also comply with the units,schools and other non-judicial bodies in the process of implementation, andintegrates judicial resources and other community resources. Because Conditionalnon-prosecution reserves no criminal record for the criminal suspect, and requiremaking up for the victim loss as the premise condition, it can take into account theinterests of both the victim and the criminal suspect and repair the damaged socialrelations. It is advantageous for the criminal suspect to return the society.The design of Conditional non-prosecution system accords with the concept ofpunishment such as “non-criminal” and “deinstitutionalization”, also meet therequirements of the corrective justice. It shall be more widely applied in thelegislative and judicial practice. The author suggest that the application scope shouldbe expanded to criminal suspect who may be sentenced to fixed-term imprisonmentof not more than three years", without too much limitation of subject identity orcrime types, but the procuratorial organs should comprehensively considerate theminors, the elderly, casual offence, first-time offenders, negligent crime as well asthe circumstances of the crime and repentance attitude when they decide to apply it.Before expanding the scope of Conditional non-prosecution, it should strengthen thetheoretical research, clarify the relationship between the litigation right andjurisdiction, refine the conditions Conditional non-prosecution, improve the staff’sprofessional level and quality inspection method, and enlarge the prosecutorialdiscretion, so that produce the soil that is suitable for Conditional non-prosecutionwidely application, establish a stratified system design which includes “nolleprosequi—discretional—non-prosecution—Conditional non-prosecution—prosecution”, improve the judicial process, and realize the unity of the social effectand legal effect.