On The Range Of Public Prosecution Cases Where Parties Have Reached Settlement

This Master’s dissertation is composed by introduction and the body of four chapters. The special procedure of public prosecution cases where parties have reached settlement added in the China’s Code of Criminal procedure of2012preliminarily established reconciliation rights for the parties. The dissertation searches the range of the aboved-mentioed cases to fully realize the reconciliation rights along the advancing path of "legislation, comparative law, law enforcement, improvement". There’re three innovations in this dissertation:mining the plentiful connotation and the inclusiveness of "civil disputes" which is a iconic concept in the special procedure from the perspective of the civil origins of justice, need-hierarchy theory and the transformation trends of "Social-national" dual structure; researching the cases’range and its expended direction from the aspects of "legislation, comparative law, law enforcement"; clearing the rules of access to the cases, confirming the parties’right to start the special procedure of reconciliation, guaranteeing the offenders’ statutory right of leniency to resolve the problems in the implementation of the special procedure taking the written judgements of reconciliation cases as examples.The introduction draws forth the right-oriented developmental trend of criminal procedure law and summarizes the representative viewpoints of theory and practice, thus difining the cases’ range with the clue of right and confirming the parties’ reconciliation rights through explaining the cases’s range, then tells the body’s advancing path of "legislation, comparative law, law enforcement, improvement", the body’s innovations and methods as well.The first chapter comprehensively review the Criminal Procedure Law, relevant judicial interpretations and provisions of Ministry of Public Security, which together constitute the system of legal norm for the reconciliation of special procedure, indicating the inclusiveness of the law and its roughness. The provisions of Ministry of Public Security rejected the law’s inclusiveness while the judicial interpretations coordinated with the law. Legally applicating the special procedure relates to the interpretation of "civil disputes"、sentencing range’ kind and exception clause, the deliberation on the excluding provisions in the department rules of Ministry of Public Security as well. Connotations of "civil disputes" are so plentiful that we should continue mining them in implementation but not eagerly develop the negative list.The second chapter introduces the criminal mediation or reconciliation of representative countries and region and summarizes their regularity:from misdemeanors to felonies, from minor offender ceses to adults’cases. Varies with stages of the proceedings. En experience in Italy is that strengthening the rights of the parties help keep a wide range of its special procedure system’s application and increase its efficiency of proceedings, reminding us that giving the parties the right to start the special procedure is a way to expend the range of cases and improve our efficiency of criminal mediation or reconciliation. The special procedure has a extensive native source of rationality and need to be constructed scientificly and socially. The special procedure differs from the State’s Relief System for the Victims in theoretical basis and applicable range so the two sides are complementary.The third chapter indicates that in the implementation of law, some realistic reasons, including functional localization of criminal legal norms, tribunal habit, the press’s hunting instincts and its pressure on tribunals, occupational risks of the administrative evaluation index, lead to the judges’"not daring" to the special procedure’s application. Cases investigation shows that considerable and having not been treated correctly cases belong to the range of the special procedure’s reconciliation. The judges’misconception that there exist a competing relationship between the reconciliation of the special procedure and the traditional reconciliation as well as its examplification in the written judgement, the confusion of the verification rule of the cases and the law review on the range of public prosecution cases where parties have reached settlement, jointly explaining the judges’"ignorance" of the special procedure’s application. So the range of reconciliation cases of the special procedure is not only directly and basically subject to the legal norms but also affected indirectly but importantly by the juridical and law-abiding levels in the special procedure’s implementation where special procedure is difficult to run standardisedly when driven by power while running with a clear applicable rule when driven by right. To creat a more mature and open rule of the public prosecution cases where parties have reached settlement, we should confirm the parties’right to start the special procedure of reconciliation and guarantee the offenders’ statutory right of leniency. The specialized agencies can only do formal examination for "voluntariness and legality" of reconciliation and uniformly take "settlement agreement" as core element of "voluntariness and legality"’s evidence unless existing clear evidence to the contrary.The fourth chapter end in improvement of the range of public prosecution cases where parties have reach settlement:optimizing the static legal norms related to the range of cases to directly expand the range, inside which include the standards of alleged charges, possible sentencing range, exception clause, the distinction between minor offender ceses and tadults’ cases, the distinction between misdemeanors and felonies; aiming at the factors of affecting the range of cases dynamicly and indirectly including starting mode of the special procedure, the reconciliation’s legal consequence of the special procedure, the prompt engagement of the settlement agreement and the interpretation of the specialized agencies’ workload of reconciliation, give parties a right to start the reconciliation of the special procedure, guarantee the offenders’statutory right of leniency, motivate the offenders and relieve the victims, don’t excessively intervene the reconciliation by authority.