On the conditions attached to the prosecution not to prosecute regime has brought new challenges

On the conditions attached to the prosecution not to prosecute regime has brought new challenges On the conditions attached to the prosecution not to prosecute regime has brought new challenges Abstracts will be the new Criminal Procedure Law with conditions not recognized prosecution system, prosecutors discretion has been expanded, making the public prosecution department prosecutors handling the case has a new option on. As we all know, any establishment of a new system, go through suffering critics to question the process of gradual improvement. Prosecution prosecution departments choose to apply conditional non-prosecution system, too, will face new problems and challenges. Paper Keywords conditional prosecutorial discretion not to prosecute minor criminal proceedings terminated ‘Code of Criminal Procedure,’ the most prominent manifestations of modification is the addition of a minor conditional non-prosecution system, to a certain extent, reduce unnecessary litigation, saving litigation costs, but also means perform corrective and rescue capabilities to pre-indictment stage. Conditional non-prosecution as a misdemeanor decriminalization handling an alternative approach, in line 1 with the ‘people-oriented’ concept of the modern legal system, help resolve conflicts, to achieve case pretrial diversion function, reflects our criminal policy of combining punishment with leniency. Conditional non-prosecution system since the introduction of the law into the law has become the focus of people, one of the prosecutorial discretion be highlighted at the same time filled with the voices of doubt on the jurisdiction of the transgression. Conditions attached to the establishment of non-prosecution system is on the prosecution of indictable work presents greater challenges, and how to apply conditional discretion not to prosecute will become the focus of debate for some time the problem. ‘Criminal Procedure Code’ in the process of modifying the legal system in China has epoch-making significance, the revision in the evidence system, defense system, coercive measures, investigative measures, judicial proceedings, the penalty enforcement procedures, litigation and other legal supervision aspects of the larger amplitude revised and improved. Properly resolve the judicial practice urgent need to address some of the practical problems more 2 effectively punish crimes and protect human rights, to effectively maintain social harmony and stability. In addition to the revision on the basis of the original terms, it is the long-standing dispute ‘with conditions not to prosecute’ regime to be determined (Article 271, two hundred seventy-two, two hundred seventy-three ). I had the honor in the ‘Criminal Procedure Law’ before the amendment, the first batch of pilot handled the conditions attached to the Court not to prosecute the case of regimes. Therefore, from the perspective of a prosecutor, conditional non-prosecution of a system of human rights is not only an expression of respect and protection, but also highlights the extent of objective laws of social effects. Yet calm reflection, I believe that although the system is the system of criminal procedure in the history of a great progress, but obviously there are not the perfect place, but also to the prosecution indictment has brought new challenges and problems. First, the definition of prosecutorial discretion Prosecutorial discretion refers to the prosecution or the prosecutor in the course of the exercise of prosecutorial conduct legally entitled to the option i. Prosecutorial discretion includes the following features: First, its subject the 3 prosecution or the prosecutor; secondly, prosecutors discretion of the prosecution or the prosecutor in the exercise of prosecutorial power handling of a specific case, the discretion to choose how to act or process of implementing powers It must be some kind of basic premise of the existence of power. For example, the prosecution of criminal prosecution discretion is premised on the existence of the right, it does not matter right to sue without prosecution discretion. Therefore, an independent prosecutorial discretion is not specific power, which is a derivative right; Third, prosecutors discretion must be legally defined. Second, conditional on the prosecution not to prosecute has brought new problems and new challenges Prosecution indictment refers to the right of the public security organs and other departments to investigate cases prosecuted after the end of the right to review and prosecuted according to law, the decision not to prosecute. Public Prosecution Service in reviewing the prosecution case, according to the nature of the case, degree of social harm and other circumstances of the case processing, is a direct manifestation of prosecutorial discretion. Which can best embody the prosecutorial discretion is the decision not to 4 prosecute the case. With the ‘Code of Criminal Procedure,’ the changes, with conditions not to prosecute the case as a new way to deal with the emergence of the indictment has brought new problems and challenges. (A) conditional non-prosecution made the subject of public prosecution is active, the exercise of state power is a direct way. By law, no prosecution of proceedings by the prosecutor asked. But not to sue with the previous three forms (statutory, discretionary, relatively non-prosecution) are different, in line with conditions not to prosecute the case required to exclude the subject with a minor requirements, itself should be held criminally responsible standards are achieved. This presents a new problem, conditional non-prosecution of proceedings by the prosecutor asked whether you must? Revised ‘Code of Criminal Procedure,’ the provisions of Article 271. ‘...... People’s Procuratorate may be made conditional decision not to prosecute ......’ Does that mean that the prosecutor’s case meets the criteria requirements can not be attached conditional non-prosecution deal with it? Whether it also means that in addition to the Public Prosecution Service initiative to start the 5 program, the suspects or their families, victims and other parties can also take the initiative to start the prosecutor made conditional non-prosecution of applications? I believe that the public prosecution department full review of the case, you can take the initiative to start the conditional non-prosecution process. But for some cases, the prosecutor did not have sufficient evidence in the case and were not you start the program, or the families of suspects, victims and other parties and to submit an application under the premise of relevant evidence, the Public Prosecution after examination, comply with the conditions attached to conditional non-prosecution cases, also apply conditional non-prosecution process. Links to free download (two) with conditions not to prosecute for the subject chosen according to the revised ‘Code of Criminal Procedure,’ Article 271, which requires the conditional non-prosecution applicable subject to minors (allegedly criminal law the fourth, fifth and sixth chapters prescribed offense may be sentenced to one year in prison about criminal law). ‘Criminal Law Amendment eight’ Article 15.1 provides that ‘...... recidivist, should be severely punished, but criminal negligence and crimes committed by persons under eighteen years of age 6 except.’ Growing crime in the minors environment, ‘Criminal Law’ to protect, educate and rescue, a minor correction to the principle of offenses against minors excluded recidivism away. Which choose to apply for the Public Prosecution Service not to prosecute the main conditions attached to ask new questions. Minor, who has been sentenced to over criminal imprisonment, the sentence is finished five years later recidivism should be sentenced to the penalty of sin above. According to ‘Criminal Law Amendment eight,’ NA recidivism punished, but whether it should apply conditional non-prosecution? The author believes that the law from justice with mercy, protection, rescue minors perspective, but always should have a bottom line. For juvenile offenders again, though not severely dealt with for recidivism, but should no longer apply conditional non-prosecution deal. However, this is a new problem has emerged, such as the Public Prosecution re-offending minors NA conditional non-prosecution process, how to deal with the families of the suspect or the questions raised by this (in accordance with the revised ‘Code of Criminal Procedure ‘Article 271 of the request complies with the conditions attached to conditional non-prosecution re-offending minors). 7 Prosecutor will face a selective this problem. (Three) conditional non-prosecution of implementation issues under the revised ‘Code of Criminal Procedure,’ the second paragraph of Article 272 provides that ‘conditions are not being attached to prosecute juvenile suspects should be investigated in accordance with the authority required to report their activities, in accordance with the requirements of the observing organ called to accept treatment and education. ‘ However, the law on how to determine the observing organ not clearly defined. Conditions attached to the decision not to prosecute in the prosecution, but the test period of investigation, education, treatment and supervision work is still responsible by the prosecution. As responsible for the work by the prosecution, prosecution department, or other departments should be responsible for specific handling by the public prosecutor responsible for the case, or set up a special office staff. I believe that, in the prosecution of the suspects made a conditional decision not to prosecute should be case managers responsible for tracking test period, the investigating authorities responsible for the supervision by the 8 families of suspects, schools and community corrections departments (such as street, village, etc.) to help together to complete the test period of investigation, education, treatment and supervision. But no doubt, will further increase the difficulty of the work indictment. (Four) with conditions not to prosecute cases of screening questions start with conditions not to prosecute a necessary condition for the program is the ‘show repentance’ is mainly reflected in the subjective attitude of confession, compensate the victims of economic losses, to obtain understanding of victims and so on. Meets the above criteria, you can start the suspect conditional non-prosecution program it? Society, some people questioned the point of the victim in the face of power, money, under pressure, was forced to accept the suspect parties apology and compensation, and issued a letter of understanding and so on. The case, whether conditional non-prosecution should start extent is it? Faced with this challenge, I believe that prosecution should not only remain in the written examination, you should learn more about the true wishes of the victim after the right side of the case to make appropriate treatment 9 to achieve conditional non-prosecution alleviate social contradictions role. In retrospect, conditional non-prosecution system from a proposal to establish a long process, there are a lot of people for the establishment of this system is a violation of jurisdiction, and that it would return to the immunity from prosecution has been repealed regime to the old way. However, conditional immunity from prosecution not to prosecute the legal property is entirely different. Immunity from prosecution is found guilty as a prerequisite, but in view of the case and the specific circumstances of suspects without charge, in essence, is a special form of conviction, in violation of the right to belong to convicted basic principles of jurisdiction Therefore in the 1996 Code of Criminal Procedure modification was abolished iv. The conviction is not conditional non-prosecution act is a non-conviction, non-penalty litigation. In recent years, China’s upward trend in the number of crimes, juvenile delinquency trend is more obvious, social security situation is fairly grim, a heavier burden on judicial proceedings. Many aspects of minor criminal cases go to trial, will inevitably result in a serious 10 waste of judicial resources. I believe that the conditions attached to the establishment of non-prosecution system is to avoid waste of judicial resources, improve efficiency, and ease the litigation proceedings pressure necessary to choose. In some cases, the system will pre-trial diversion, but also bound to increase prosecution prosecution work of the task. Prosecution prosecution departments should take the initiative to deal with, the development of relevant implementing rules for conditional non-prosecution system implementation to provide strong safeguards to ensure the effective implementation of the system. Links to free download 11