Research On The Power Of The Public Prosecution Withdrawal By Procuratorial Organs

The power of the public prosecution withdrawal has been active in China’s criminal judicial practice for a long time,which has multiple values such as correcting improper prosecution,promoting human rights protection and improving litigation benefits.However,since the revision of the Criminal Procedure Law in 1996,the power of the public prosecution withdrawal has been in an unstable state of lack of uniform upper law and mixing of multidepartment regulations.Due to the shortage of legal foundations and the unstandardized exercise of power by the procuratorial organ,the power of the public prosecution withdrawal is frequently out of order in practice,which causes a serious impact on the central position of the trial.Therefore,based on the current norms of withdrawing public prosecution,this paper,from the aspects of system,practice and procedure,faces up to the realistic dilemma of the power of the public prosecution withdrawal,explores the path of improvement,in order to promote the legislative process and standardized operation.This paper studies the power of the public prosecution withdrawal by procuratorial organs from five aspects.The first part is an overview of the power of the public prosecution withdrawal.The concept of the power of the public prosecution withdrawal is defined from two aspects of intension and extension,and the nature of the power of the public prosecution withdrawal is extended to be exclusive,procedural and demanding.The principle of separation of prosecution and trial,prosecutorial discretion and prosecutor’s objective obligation are taken as the theoretical basis of the power of the public prosecution withdrawal,and the system value of the power of the public prosecution withdrawal in substantive justice,human rights protection and litigation benefits is discussed.The second part is the investigation of the institutional system of the power of the public prosecution withdrawal.Through the analysis of the evolution of the system,it is concluded that the main defects of the power of the public prosecution withdrawal in the institutional perspective are low hierarchy of the current norms,broad limitation of time,unscientific setting of circumstances,fuzzy legal effect and so on.The third part is the practice inspection of the power of the public prosecution withdrawal.Judicial statistics should be carried out in the withdrawal of public prosecution rate,acquittal rate,application situation and time stage to grasp the status quo of power operation as a whole.Through case analysis,it is found that the power of the public prosecution withdrawal in the practical level of alienation,such as the dissolution of the acquittal judgment,the application of circumstances outside the law,the case dispoition beyond the law,the arbitrary prosecution and so on.The fourth part is the procedure of the power of the public prosecution withdrawal.According to the difference of initiation methods,the withdrawal of public prosecution procedure is divided into two types: initiative type and suggestion type.By observing the procedure operation of the case,it is found that there are some loopholes in the procedure of the power of the public prosecution withdrawal,such as starting randomly,going through the formalities of examination,and vacuum of rights protection.The fifth part is the perfect path of the power of the public prosecution withdrawal.Firstly,implement the concept of judicature centralism.To realize "trial centralism" in terms of power allocation,procedure operation and law application.Secondly,to promote the standardization of the power of the public prosecution withdrawal.To explore the reasons for abolishing the revised law in 1996 and "justify" the power of the public prosecution withdrawal.The withdrawal time is limited to ndbefore the end of the court trial of first instance,and should be divided into the withdrawal before trial a withdrawal during trial.Moderately expand the scope of application,and divide the case of withdrawal into six categories,that is,not to constitute a crime,not investigating criminal responsibility,not criminal responsibility,doubtful evidence,legal applicability and blocked procedure.Clarify the multiple connotations of the effect of withdrawal,and clarify the effect of the ruling to allow withdrawal before and during the trial.Establish the principle of non bis in idem and restrict the re-prosecution.Thirdly,from the perspective of power control,we will improve the supervision and restraining system,improve the internal restriction of procuratorates,and strengthen the court’s right to review the withdrawal of charges.The fourth is to establish the parties’ procedural intervention mechanism from the perspective of empowerment,taking into account both the participation in the matter and the relief afterwards,and putting the concept of human rights protection throughout the whole process of withdrawing public prosecution.