Research On The Application Of Discretionary Non-prosecution In Juvenile Cases

In the proceedings of juvenile criminal cases in China,discretionary non-prosecution system includes two types: relative non-prosecution and conditional non-prosecution,which is of vital significance for the return of juvenile offenders to society and healthy growth.However,in judicial practice,especially in the face of the situation that both relative non-prosecution and conditional non-prosecution can be applied,the procurator will almost not choose to apply conditional non-prosecution,resulting in the default function of conditional non-prosecution system can not be played.Based on the interpretation of the relevant provisions of the text,this paper makes a empirical investigation on the specific practices of two kinds of discretionary non-prosecution concurrence application within the K District of Q City,analyzes the reasons for the low rate of conditional non-prosecution application,and tries to put forward suggestions for the improvement of the two kinds of discretionary non-prosecution concurrence application.In addition to the introduction and conclusion,the text consists of four parts.The first part is the normative interpretation of the concurrence of two kinds of discretionary non-prosecution.In 2012,the decision on Further Strengthening the criminal prosecution of minors stipulated the basic principle of "priority of relative non-prosecution",which was supported by many people.From the conclusion,in order to meet the "best interests of children" or pursue litigation efficiency can not be the reason to support the "relative non-prosecution priority theory",and this view itself conflicts with the principle of education,so it does not have natural legitimacy.The second part is the empirical research on the current situation of the concurrence of two kinds of discretionary non-prosecution.Through the statistics of the number and proportion of relative non-prosecution and conditional non-prosecution,in-depth interviews with the procurator and analysis of typical cases,the author found that: in the K District People’s Procuratorate of Q City,in the face of two cases of non-prosecution concurrence and application,the procurator almost relative the discretionary non-prosecution on one side,and the application rate of conditional non-prosecution is very low.The third part is the analysis of the reasons for the current situation of the concurrence of two kinds of discretion.For those who are not prosecuted,the supervision and investigation measures of conditional non-prosecution are too heavy.At the same time,in the context of business performance evaluation with the non prosecution rate as the main indicator,compared with the relative non-prosecution,the application of conditional non-prosecution will not bring extra bonus points to the non-prosecution personnel,or even lead to the final failure to obtain bonus points,while the content of the social investigation report is empty,formalized,it also fails to provide substantive reference for the assessment of the possibility of recidivism and other matters,so it is impossible to judge the necessity of applying conditional non-prosecution,and the examination and approval procedures for relative non-prosecution at present are greatly simplified and lack of supervision.As a result,the non-prosecution personnel are reluctant to attach conditions to not prosecute when they are faced with two cases of non-prosecution and concurrence.The fourth part is the perfect way to the concurrence of two kinds of discretionary non-prosecution.First of all,it is necessary to clarify the screening principles of the concurrence of two kinds of discretionary non-prosecution,re-establish the principle of "necessity of supervision and investigation" centered on the review of the possibility of recidivism,and cancel the original principle of "priority of relative non-prosecution".Secondly,we need to improve the corresponding supporting measures.Specifically,first,we need to relieve the pressure of the prosecution department;second,we need to work together to improve the conditional non-prosecution supervision and investigation measures;third,we need to adjust the content of the performance evaluation of the non-prosecution business;fourth,we need to standardize the social investigation report system;fifth,we need to strengthen the relative non-prosecution decision-making supervision mechanism.