On The Non-prosecution Discretion

The transformation of the concept of purpose of penalty,as well as the trend of mitigation and non-penalization of penalty,provides the soil for the emergence of doctrine of free evaluation prosecution,and makes non-prosecution discretion gradually become an important power of prosecutors.The exercise of non-prosecution discretion can maintain the modesty of criminal law,overcome the limitations of criminal legislation,and improve the economy of criminal proceedings.Its implementation mode includes relative non-prosecution system and suspended prosecution system,corresponding to China ’ s discretional non-prosecution system and conditional non-prosecution system.Due to the harsh application conditions,the number of cases that can actually apply the discretional non-prosecution system and the conditional non-prosecution system is very limited.In addition,prosecutors still have various obstacles to the exercise of non-prosecution discretion,which leads to the low application rate of the non-prosecution discretion system in China.However,there is still room for the application of the non-prosecution discretion system in many criminal cases in China ’ s judicial practice.In order to give full play to the value function of non-prosecution discretion,the scope of application of the two non-prosecution discretion systems should be expanded,and the situation that prosecutors are not willing to exercise non-prosecution discretion should be prevented.At the same time,attention should also be paid to preventing abuse of power and damaging the interests of all parties.The first chapter of this paper mainly expounds the concept and theoretical basis of non-prosecution discretion,and analyzes its value function on the criminal legal system.The second chapter combs and compares the realization mode of non-prosecution discretion in different legal systems and countries.The third chapter reconstructs the operational framework of China ’ s non-prosecution discretion.The reconstruction word based on three aspects of the scope of the case,the prerequisites and the procedural requirements.The applicable object,the applicable accusations and the penalty requirements are appropriately expanded.And it is required that the exercise of the non-prosecution discretion should meet the two prerequisites of reaching the legal conditions for prosecution and not having social harmfulness.The decision on whether to prosecute should be made according to the opinions of the criminal suspect and the victim,and the time limit for the exercise of the non-prosecution discretion should be extended to the trial stage.The fourth chapter improves the supervision and restriction mechanism of non-prosecution discretion in China.The anomie of prosecution discretion is divided into the misuse and abuse of non-prosecution discretion.For the prevention of misuse,this paper argues that by giving prosecutors some autonomy to weaken the internal control,should also strengthen the indictment on the non-prosecution discretion part of the explanation to avoid prosecutors without discretion to prosecute.The abuse of non-prosecution discretion is mainly manifested in two situations.One is abuse in cases that do not meet the statutory conditions for prosecution,and the other is abuse in cases that should be prosecuted.In this regard,the right to review and review of the current public security organs and the right to appeal of the non-prosecution person and the right to appeal of the victim and the right to self-prosecution should be abolished,instead of giving the suspect or the victim the right to consent or dissent about non-prosecution decision.