An Empirical Study On The Withdrawal Of Public Prosecution Case

The action withdrawal system of public prosecution refers to the legal act when procuratorial organ submit a case to the court, only to find that the requirements of prosecution does not conform to the legal prosecution conditions and require to withdrawal the previous prosecution. The action withdrawal of public prosecution is not only an important part of the right of prosecution of procuratorial organ but also an action of self-correction for procuratorial organ. Hens, the rationality and necessity of this system should be asserted.This article investigates the operation condition of the withdrawal the prosecution over the past ten years, finding some problems like the reasons for withdrawal has always been magnified causing the abuse of the right of prosecution from the procuratorial organ; some cases with problematic evidence were brought to the trail process for some unclear reasons and the procuratorial organ withdrawal the prosecution for the sake of evidence which easily leads to the waste of prosecution resource and the infringement of the right of appeal for the litigant; the problem of inopportune prosecution withdrawal, the broad current judicial interpretation and regulation arbitrary not only violate the principle of the separation of accusation and judgment but also become the tool of avoiding acquittal of procuratorial organ. So, the review of the court to the withdrawal the prosecution will easily be formalized which caused the interference of procuratorial organ to the court judgment leading to the violation of the litigious idea; besides, it is a common phenomenon that the opinion of the parties in prosecution usually can not be respected which is bad for the protection of human protection, the chaotic handling process.In China, the legislation of prosecution withdrawal is far from being perfect, on one hand; the procuratorate and court tend to find no proper principle to rest on in the practical problem handling, on the other hand, the phenomenon of exploiting loopholes always appeared when some unit or organization intend to maintain their assessment of interests. Therefore, in order to perfect the action withdrawal system of public prosecution, we need to introduce the well-established law from the consideration of the legislation and practical operation. Concretely speaking, we need to restrict the reasons for the prosecution withdrawal and prevent the cases with problematic evidence from entering the trail process while clear and define the last timing point of prosecution withdrawal should be before the end of first instance debate, besides, prosecution withdrawal can not be implemented during the review process. The effect of withdrawing an action can not simply be defined as the end of the prosecution, the end of the trail should be based on the restriction of the prosecutions carried out by procuratorial organ and the regulation on the compulsory measures change of defendant after the prosecution withdrawal happened so as to protect the lawful rights and interests of the parties involved in the case, highlighting the judicial fair and strict judicial image in China.This article analyzed a series of problems existed in the legislation of the action withdrawal system and the practical operation through the empirical study. Based on practical and theoretical concerns, it deeply analyzes the inducement and the possible consequences caused by those problems and puts forward relevant legal suggestions, hoping it can be helpful for Prosecutors and the courts in dealing with the problems in reality and protecting the human right of the people in involved in the case.