The Study Of Withdrawing Public Prosecution

Withdrawing public prosecution is a kind of action that a procurator withdraw a criminal case from court, this action must be finished before the court make a judgement on the case, the procurator has to list legal reasons why he wants to give up the right of investigating the defendant’s criminal responsibility, and the court must check whether it meets the regulations of law or not, and then make a determination that permitting the procurator’s application or not. In today’s world, allowing procurators to withdraw public prosecution is a universal judicial practice. Withdrawing public prosecution is based on the principle of opportunity, it depends on prosecutors’ discretion on the cases which meet the conditions for prosecution and have entered the trial stage. In China, the legislation of Withdrawing public prosecution has passed three stages, legal recognition, repealed when revising the law, and confirmed in judicial interpretation. Under the guide of judicial interpretation, the practice of Withdrawing public prosecution is disordered,and it is always used as a tool which can avoid innocent verdicts, hide errors and reduce misjudged rate. The reason why this happens is closely related to the incomplete legislation on withdrawing public prosecution. In China, there is no withdrawing public prosecution system in the strict sense, because it is not mentioned in the legislation and is stipulated only in the judicial interpretation. This has violated the procedure legal principle. Therefore, it has suffered from criticisms. In the judicial interpretation, the regulation of the withdrawing public prosecution is also full of problems. For instance, the reasons for withdrawing a public prosecution are inappropriate. In China, the reasons for withdrawing public prosecution are almost all related to the situations in which the defendant will be declared not guilty or not criminally responsible for the case. If these situations are found in the prosecution phase, prosecutors should make the decision not to prosecute. Even though the case has entered the trial stage, no prosecution is also a legal requirement. Of course, there is no room for prosecutors to make any discretion and it does not meet the requirement of the principle of opportunity. Hence, China’s withdrawing public prosecution remains to be further amended and improved.By analyzing the concept and theory of withdrawing public prosecution, this article has clarified its true meaning. Combined with the status quo of judicial practice and legislation in our country, after comparing with the similar non-prosecution system, some assumptions are made to further improve the withdrawing public prosecution system in order to make relevant legislation and practice reasonable.Overall, this article is generally divided into four parts. The first part, “the true meaning of withdrawing public prosecution”, has analyzed its concept and theory. The article has also defined the nature based on the concept and theoretical basis so as to clarify its meaning.The second part, “the status quo of China’s withdrawing public prosecution”, has illustrated the problems in withdrawing public prosecution in terms of judicial practice and legislation. As for judicial practice, Xu Jingxiang’s case is mainly used as the example.The third part, “association and differentiation of China’s withdrawing public prosecution”, makes comparisons between similarities and differences of withdrawing public prosecution and no prosecution so as to state the problems about legislation on withdrawing public prosecution.The fourth part, “improvement of China’s withdrawing public prosecution", puts forward some suggestions on withdrawing public prosecution in terms of reasons, time limit, effect and relief measures.