Empirical Study Of The Non-prosecution System

As an important processing method of cases,there are a lot of problems in application of non-prosecution.According to the provision of the "Code of criminal procedure" of China,there are three kinds of non-prosecution,Relative non-prosecution,Legal non-prosecution and non-prosecution with doubts.Given the background of 1996 " Criminal Procedure Law ",the Legal non-prosecution system is imperfect,the prosecuting apparatus created another case processing method,which is "withdrawing to review and prosecution".As a supplement of legal non-prosecution system,the essence of withdrawing to review and prosecution is an kind of alternative non-prosecution.This study puts focus on the applicable scale of non-prosecution including all four kinds of non-prosecution.I hope this study will be helpful to the resolution of the applicable scale of non-prosecution.This article is about 30000 words and it concludes four parts except introduction.The first part is macroscopic investigation.It aims to finding the problems of wrong application of non-prosecution,based on analysis of the overall situation of nationwide non-prosecution.From 2002 to 2008,in China,the ratio of non-prosecution was low but withdrawing to review and prosecution was extensively used.In addition,we can find from the data that the application of legal non-prosecution and non-prosecution with doubts growing rapidly in China from 2007.But it is inconsistent between the ratio of application of Legal non-prosecution and non-prosecution with doubts of overall country and the data form a municipality of western China from 2007 to 2011.But it is the same in this municipality with whole country which is the situation of non-prosecution and withdrawing to review and prosecution.We can draw a preliminary conclusion about non-prosecution in China.The ratio of application of Relative non-prosecution is low;the application of Legal non-prosecution and non-prosecution with doubts is disordered;withdrawing to review and prosecution is abused.The second part is microscopic investigation.In this part I try to find the reasons of the problem of wrong application of non-prosecution.From the investigation of a district procuratorate of this municipality,I find that,(1)The reasons of low ratio of Relative non-prosecution are from several aspects.The first is that the approval mechanism is tedious;the second is that the relative non-prosecution’s legal application standard is not clear;the third is the conception of excessive prosecution;the last is that the social effect of relative non-prosecution is not good.(2)There are two reasons of why the application of Legal non-prosecution and non-prosecution with doubts is disordered.The first is the assessing method of performance is not reasonable;the second is that the reviewing procedures of withdrawing and transferring case are convenient.These two aspects made the situation disorder that people avoiding Legal non-prosecution in handling case and using non-prosecution with doubts arbitrarily.Wthdrawal to review and prosecution is abused.Prosecuting organs can withdraw cases directly.And supplemental investigation system is turned to an important way of withdrawing to review and prosecution.The root causes of these problems,from a theoretical perspective,mainly from our country public procurator’s lack of independent right of non-prosecution,lack of supervision of pre-trial program back and the defects of non-prosecution operation mechanism.The third part is the comment of the influence of 2012 "Criminal Procedure Law" on the future of non-prosecution applicable impact.The 2012" Criminal Procedure Law " modified the criminal compulsory measures and non-prosecution system,the conditions of arrest are more clear,the bail and residential surveillance implementation are strengthened,at the same time,withdrawing to review and prosecution is partially cancelled,the relative non-prosecution applicable way is multiple,the non-prosecution system has been improved,which will undoubtedly have important influence on the future of for the improvement of non-prosecution application.But the 2012 " Criminal Procedure Law " retained the examination and approval mechanism of non-prosecution,the supplemental investigation system and the legal non-prosecution system didn’t amended,and the rules of 2012 the people’s procurator’s office criminal procedure(Trial)retained the practice that prosecutors withdraw to review and prosecution in the case of they investigating,the future of improving our country’s non-prosecution is still facing total block.The fourth part is suggestion.In our country,the reform of application of non-prosecution should adhere to the principle of step by step.As the number of direct litigation cases grow rapidly,we should take the direct litigation cases as a breakthrough point,strengthen the supervision of direct litigation cases,expand the application of relative non-prosecution in direct litigation cases.In the internal work of prosecuting organs,we should innovate enterprise idea,reform the performance appraisal method,strengthen the supervision of supplemental investigation cases and further simplify the examination and approval mechanism of non-prosecution.Under construction or the pilot of minor criminal cases quickly review mechanism in recent years,the prosecution of cases guiding system and relative not to prosecute education system,we must speed up the pace of construction,in order to provide institutional support for non-prosecution improvement.