Research On The Problems In And Countermeasures For The Treatment Of The Non-prosecution Or Appeal Case If Refusal To Accept Decision As Final

Non-prosecution or appeal system if refusal to accept decision as final is an important constituent in the criminal appeal and procuratorial system in China.Whether this system is scientific directly influences whether the values of the non-prosecution system such as fairness,human right,stability and efficiency can be well realized.With the establishment of the principle of presumption of innocence and exclusionary rule of illegally obtained evidence as well as the change in standard of evidence,the non-prosecution system has become one important form for the procuratorial organs to handle the criminal cases and it is of great significance to properly handle the appeal for the non-prosecution or appeal system of the parties concerned,utilize the limited judicial resources,maximally improve the correction rate of the false non-prosecution decision and the recognition of the parties concerned on the right non-prosecution decision.In practice,the appeal departments,as the major internal departments of the procuratorial organs to perform the criminal appeal procuratorial function,make great efforts to handle the case of non-prosecution or appeal if refusal to accept decision as final;however,the effect of handling the case is not ideal and there is a great distance between the handling status quo and legal requirements as well as the mass' s expectation.Because of rampant litigation of the plaintiff on the one hand and litigation exhaustion of the procuratorial organs on the other hand,vast judicial resources consumption fails to bring “case settlement with the parties concerned reconciliation” but results in the “re-injury” of partial parties concerned and the impaired authorities of the procuratorial organs.Therefore,it is necessary to research the status quo and the existing problems of the procuratorial organs in handling the non-prosecution or appeal case if refusal to accept decision as final and propose the measures and suggestions for solving the problems so as to give full play to the functional roles of the non-prosecution or appeal system if refusal to accept decision as final such as right remedy and safeguard,internal supervision and restriction and social problems solution.Apart from introduction and conclusion,this thesis is composed of three parts.Part One elaborates the concept and value of the non-prosecution or appeal system if refusal to accept decision as final and clarifies the legislation status quo thereof from the appeal subject,appeal term,appeal jurisdiction and handling procedures.According to the current law and regulations,if refusing to accept the non-appeal decision as final,the parties concerned,legal agents or immediate relatives of the original case have the right to lodge appeal to the people's procuratorate and require re-treatment.The legislation offers relatively special protection for the case that the victim lodges appeal and the claimant timely lodges appeal,that is,if the claimant lodges appeal within seven days upon receiving the non-prosecution decision,the people's procuratorate shall directly record the appeal for review,in which if the victim lodges appeal within seven days,the people's procuratorate at the next level shall record the appeal for review,and as for other appeals,the procuratorate which makes the non-prosecution decision shall decide whether to record.However,the relevant law and regulations fail to make definite provision on appeal times,appeal prescription and appeal reasons.Part Two analyzes the non-prosecution or appeal case if refusal to accept decision as final handled by the procuratorial organs and the problems in each case handling link in combination with the author's work realities,mainly including there is no limitation on the order of rights exercised by the appeal subject,appeal term and times,or no definite regulations on appeal reasons,and the differential jurisdiction accelerates the “inverted triangle” trend of appeal and treatment,which broadens the entrance of the non-prosecution or appeal case if refusal to accept decision as final,and quite an initial appeals overleap the procuratorate at the basic level and converges with re-appeal at the upper procuratorate,which results in “entrance congestion” of the case acceptance link;the irregularity of the case handling procedures,the lack of transparency of the review procedures,incompatibility between the appeal personnel quality and case handling requirements and the petition of the appeal cases result in the serious randomness of the procuratorate in reviewing the non-prosecution or appeal case if refusal to accept decision as final and low quality of case handling,and it is difficult to essentially solve the claimant's appeal,which results in the “procedure idleness” of case handling links;the difficulty in review and correction,the bad effect of contradiction solution,the inadequate other remedies for the parties concerned or poor performance in the non-prosecution case results in the seriously repeated appeal and tangled petition and prosecution,which leads to the “unsmooth entrance” of the case settlement link.Part Three proposes the countermeasures and suggestions,which constitutes the emphasis of this thesis.On the basis of correct detection of the problems,the author proposes the concrete configuration for the improvement of the handling procedures for the non-prosecution or appeal case.The first is that the features and characteristics of the non-penal treatment of the non-prosecution determine that the non-prosecution or appeal case shall be settled by adhering to the principle of “limited remedy” while taking into account “effective remedy”.The second is that the design for the non-prosecution or appeal system shall clarify the order of rights exercised by the appeal subjects,restrict the term and times of the appeal,legalize the appeal reasons,and in the meanwhile establish more scientific and reasonable jurisdiction mechanism to promote the timely,orderly and effective exercise.The third is that as for the improvement of supporting work system it is suggested to integrate the limited resources to improve case handling quality by improving the “integrated” handling mechanism,improve the credibility of reexamination conclusions by improving open examination system,to regulate other legal remedy channels for the claimant as the necessary supplement for the appeal system,to establish compensation mechanism for the victim to lessen the trauma to promote the restoration of conflicts,and to adopt the system for lawyer agent appeal to guide reasonable appeal and right protection.The above-mentioned countermeasures and suggestions are conducive to realizing the case handling of the non-prosecution or appeal case if refusal to accept decision as final,as well as the unification of handling quality,efficiency and effectiveness.