The Study On Applicable Conditions Of Discretional Non-prosecution

Discretional non-prosecution is the embodiment of the doctrine of prosecuting discretion. The system achieved many vital goals as distributary cases, improving the efficiency of lawsuit, optimizing the allocation of judicial resources, promoting the suspect to return to society. Although laws have provisions on applicable conditions of discretional non-prosecution, legislative ambiguity and uncertainty have leaded to the lack of uniform discretionary factors in practice, and seriously hindered the application of the system. Therefore, based on the discussion of applicable conditions of discretion non-prosecution, this article analyzes the factors which affect the system in practice, and puts forward to the countermeasures. With this research, it hopes to provide ideas for the improvement of discretional non-prosecution.This paper is divided into three parts and about 40,000 words except the abstract.The first part unscramble the theory of the system. The conditions include the crime condition and the penalty condition. “Minor crime” is the crime condition of discretion non-prosecution. It contains conviction and measurements of penalty. For the types of crime that can be used discretional non-prosecution, there should have no limit on accusations and criminal characters. As the penalty condition, “Don't need to be sentenced or exempted from punishment” consists of “Exempted from punishment” and “Don't need to be sentenced”. The former has many provisions to be followed in criminal law, but the latter only has principles in article 37 of criminal law which possesses huge discretion space. Starting from the relationship between the crime condition and the penalty condition, applicable conditions of discretional non-prosecution should cut off the former.The second part observes the operation situation of the system, and analyzes the discretionary factors in practice. In view of the situation which is in the procuratorate of Y distract, C city from 2010 to 2014, it makes clear that there are three aspects to be considered in applicable conditions. Firstly, the criminal suspect does not have a criminal record, compensates for victim actively, gets a written understanding, has a good attitude toward admission of guilt. All these are the implicit applicable conditions in practice. Secondly, the idea of fighting criminals makes procurators take criminal prosecution as the responsibility and don't want to apply the system. The procurators has been hindered further to apply by the cumbersome procedures,indicators for performance check and considerations for investigative organization.Thirdly, procurators' incompetence, bad attitude in handling a case and the formalization of examination and approval cause the misuse of discretional non-prosecution. The procurators abuse discretion non-prosecution for reasons of state compensation, check pressure, the relationship between prosecutors and polices,emotions outside the law.The third part offers a proposal about improving the system, aiming at discretion factors in ideal and reality. First of all, procurators are supposed to pay attention to performing objective duty. This assures enough discretion factors to enter the stage of prosecution. On this basis, applicable conditions must be changed according to practical needs. Conditions can be split into suspects' own situations, cases' situations,post-crime situations. This method unites discretion factors and operates conveniently.Secondly, simplifying the procedure is to avoid the phenomenon of “on the shelf”.These mainly consist of two aspects:(1) power of deciding non-prosecution ought to be awarded to chief prosecutors. Chief prosecutors directly make decisions for common cases. If case handling personnel disagree with the chief prosecutor or the chief prosecutor doesn't have assurance about the case, they can submit the case to procuratorial committee to discuss;(2) it can dislodge the applicable threshold that to cancel the filing system of higher procuratorate. Thirdly, through reforming the existing working mechanism, pursuing group discussion, the abuse of discretion non-prosecution will be held back. Finally, giving the right of applying for adjudgement and establishing the hearing system are the way to perfect remedy,enhance participation.