Research Of Minors Conditional Non-prosecution System

Conditional non-prosecution system, originated in Germany, Japan and other countries（regions）, was gradually established in practice. There is one thing in common between the appearances of conditional non-prosecution system in civil law system and common law system:their direct motivity is that the judicial authority is tired of coping with the increasing crime rate. It is a lawsuit system appeared between the conflicts of the social transformation and social contradictions.In China, the formation of the conditional non-prosecution system has experienced a long process:from the exploration practice in 1992 to the legislative establishment in 2012. Criminal procedure law, which was revised in 2012, established conditional non-prosecution system in legislation. This embodies the transformation of China’s criminal judicial idea. It is a concrete implementation of the criminal policy of combining punishment with leniency, and it also indicates that the rights of victims deserve to be respected.Since the conditional non-prosecution system was established in the legislation of our country, its application rate in the judicial practice is not very high. After the introduction of new criminal procedure law, most of the investigations regarding the conditional non-prosecution system in Chinese academic circles are limited to analysis of theories, but only few explore its existing problems, causes and methods of improving its applicable rate from the empirical perspective. Therefore, this paper takes Gaoan Procuratorate as an example to study the conditional non-prosecution system from the empirical view, analyzes the reasons that cause the low applicable rate of this system, and raises specific concepts to improve its practice and system.This paper consists of three parts. The first part introduces the conditional non-prosecution system. Conditional non-prosecution system is a measure taken by German and Japanese judicial organizations for the purpose of high judicial efficiency, while in the United States it is adopted by the judicial organizations to promote criminal suspects to return to society. German laws regulate that the conditional non-prosecution system shall be applicable for minor crimes, but it has been extended to mediumcrimes in the judicial practice; In Japan, the conditional non-prosecution system is applicable for all levels of crimes, including felony cases; In the United States and Taiwan of China, the conditional non-prosecution system is applicable for misdemeanor cases. In the applicable object, the conditional non-prosecution system is not applicable for the minors in Germany, Japan and Taiwan of China. The emergence of the conditional non-prosecution system in China was caused by two reasons:the need of economical litigation, and the special protection of juvenile criminal suspects. Thus, the conditional non-prosecution system is only applicable to the minors. Its applicable scope is limited to the accusations stipulated in chapter four, five and six in specific provisions of the criminal law, and it must be a misdemeanor; it also simultaneously meets the following three conditions:"may be sentenced to fixed-term imprisonment of not more than one year", demonstrate repentence, and have conditions for help and education. In our country, the conditional non-prosecution system has played a positive role in educating and saving the minor criminal suspects, transforming and maintaining social harmony and stability, and reasonably allocating judicial resources.On the basis of investigation and research, the second part takes practical cases to analyze the existing problems and reasons of the conditional non-prosecution system in practice. From 2012 to the first half year of 2015, the numbers of juvenile cases and people handled by Gaoan Procuratorate have posed an increasing trend. Among these cases, minor criminal cases accounted for about 70%, but the conditional non-prosecution system could be applied to very few cases, less than 10%. The conditional non-prosecution system has problems in the implementation, such as the applicable rate is on a low side, contradictory to relative nol pros system, and the investigation of help and education becomes a mere formality. These problems have been caused by the narrower range of application in law:it is difficult to measure the applicable conditions, such as "may be sentenced to fixed-term imprisonment of not more than one year", "demonstrate repentence", and "conditions for help and education"; the inspection subjects are too specific; the attached inspection conditions are less targeted; not fit in with the characteristics of minors.In view of the problems and causes of the conditional non-prosecution system in implementation, the third part raises some specific ideas to improve conditional non-prosecution system on the basis of the experience at home and abroad. Firstly, expand the applicable range of the conditional non-prosecution. One is to increase more applicable cases, expand this system to all misdemeanor cases, not including serious cases, such as crimes of endangering national security, cases involved in the terrorist and the underworld, drug-related crimes, recidivism, or criminals that vagabond to commit crimes; two is to extend the term of imprison to "may be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or single penalty payment". Secondly, determine the specific performance of "repentance", and improve the subjects, ways and contents of social investigation, in order to enhance the operability of the conditional non-prosecution. Finally, take school and community into the investigation subject, implement family education, school education, community education and labor education to minors, especially cooperate with enterprises to establish a "base for observation and protection", so as to provide the minors with a fixed place to accept labor education. For the setting of additional investigation conditions, in addition to mandatory investigation obligations, choose the related investigate conditions that have some certain penalty, adaptive to minors’ abilities and related to the case, based on the personal situations, criminal circumstances and causes of the juvenile criminal suspects.