Papers Category:Legal Papers
- Judicial System Papers
Post Time:2006-12-29 13:51:00
Prosecution refers to the suspension of prosecution under the provisions meet the statutory requirements for a criminal defendant a conditional decision to slow to prosecute suspected criminals in a certain period of time fulfilled its statutory obligations, and then decided to terminate the litigation system in the prosecution of discretion. The essence of suspension of prosecution of the conditions attached not to prosecute. To suspend the prosecution of the late eighties of last century on the abolition of the immunity system of battle, been one of concern.  Of course, today's discussion, whether the background or purpose, and the original situation is very different. I think it stay the prosecution to explore the relevant issues in the context of judicial reform carried out a search, the results of this exploration for criminal justice, efficiency and protection of the rights of the related, are different from that of the previous significance. If the right to suspend prosecution of awareness of relevant aspects of the system in place, a number of key issues can be properly handled, then the Code of Criminal Procedure in China to design a more complete suspension of prosecution system in the positive sense that should be in the affirmative. To this end, need to stay the prosecution of the systems and practices, values and questions, exploring such issues as the future.
1 to suspend prosecution of their situation: the system and practice
Suspension of prosecution, also known as slow to be prosecuted, it just meant that those who infringe the penal law, according to their criminal nature, extent and circumstances of the crime by crime, the offender's age, situation, after the crime, the performance of such statutory situation, the Public Prosecution Service that there was no need to an immediate investigation of his criminal liability according to law of conditional non-prosecution of a temporary system. From the system design and practice point of view, the conditions attached to the temporary suspension of prosecution of such treatment of non-prosecution of the proceedings on the final results there are two possibilities, one defendant to defer prosecution of the statutory period of fulfilling the legal requirements concerning the should assume its obligations, then the public prosecutor to suspend prosecution to withdraw the decision, publicly announced that no prosecution for their crimes; The second is to stay the prosecution during the suspension of prosecution if the violation of the provisions of the supervision and management, then the public prosecutor to suspend the decision to prosecute should be removed , for prosecution. Knowledge systems and practices stay the prosecution case is the basis for further discussions after us. Therefore, we first suspension system of content and practice of prosecution case will be described briefly.
(A) the situation outside the
Defer prosecution on the legal system, most countries and regions has not been set. Establish a moratorium on prosecution system from a small number of countries that are typically known to the provisions of the German Code of Criminal Procedure. German Code of Criminal Procedure 153 provides a temporary not to prosecute, that is, the conditions attached to the system is temporarily not to prosecute. It provides that: The responsibility to start the proceedings of the court and the accused agree that's Procuratorate may temporarily not be prosecuted for minor offenses, while requiring the accused person: (1) make certain payments to make up for the damage caused by acts; (2) public facilities or the state treasury to pay a certain sum of money; (3) to make other public benefit, or (4) to undertake a certain amount of maintenance obligations to these demands, and ordered held responsible for the elimination of public interest and level of responsibility associated with this phase is called limit. It also provides Procuratorate shall determine to perform the above requirements, the deadline ordered the defendant to fulfill requirements, when ordered its misdemeanor not be pursued.
Germany, the conditions attached to the application of a temporary not to prosecute is based on the prosecution for minor offenses enjoy a certain discretion to prosecute or not, but its exercise of the right to suspend prosecution must comply with the conditions provided for by law, including: the first First, the crime of mass condition. Person accused of misdemeanor offenses. According to an offense committed by the German Branch Office of the severity of punishment of crime into a felony, misdemeanor, and violation of police crime, stay the prosecution applies only to petty crime, court and police for felony offenses not apply; second, the real condition. Must be based on public interest considerations. The so-called 'based on public interest considerations', that is, whether it is necessary to consider the defendant be held criminally responsible, whether the public interest to prosecute the accused, and other factors. Third, the procedural conditions. Must be approved by the responsibility to start the proceedings of the courts and the accused person's consent. Fourth, we must fulfill certain requirements, shall be ordered.
Although the German Code of Criminal Procedure sets out the conditions attached to defer the prosecution system, but is said to stay the prosecution system in Germany there is a lot of controversies. From this system finally get confirmation of the legislative point of view, the idea of holding certain commentators in the Legislative Council at the time of a dominant position. The German Code of Criminal Procedure related to the practice shows that the suspension of prosecution of criminal proceedings in Germany, the practice of playing a certain role. According to statistics, since 1981 -1997 year, in Germany, to prosecute cases of a relatively low percentage of the highest prosecution rate of 19%, the lowest was only 12.3%, the vast majority of cases taken by the prosecution, including non-prosecution, revocation cases, and other ways to deal with. In the non-prosecution cases, according to 153 cases a decision not to prosecute the case in these annual accounts for a more stable rate is about the total number of prosecutors dealing with cases of 5.6% -6.2%. 
In addition to the provisions of the German Code of Criminal Procedure, Code of Criminal Procedure of Japan are also similar to the German Code of Criminal Procedure provided for suspension of prosecution system,  and are said to practice in criminal proceedings have obvious results. According to Professor Song Yinghui introduction, in the last century during the 90's, stay the prosecution not to prosecute cases of total Japan total about 90% of the total criminal cases, 25-30% or so. In 1994, Japan's Public Prosecutor's Office handled 2,126,988 cases, of which not to prosecute cases of 658,163, accounting for 30.9% of all cases; suspended prosecution of cases of 621,463, accounting for 29.2% of all cases, the total not to prosecute cases of 94.4% . 
(B) Practice in China
China's Criminal Procedure Law does not require suspension of prosecution system, but slow to prosecute criminal cases against minors, as a treatment, some areas in recent years, prosecutors in the judicial practice, exploring a reform. Therefore, in judicial practice, some of the similar practice, he was known as slow to prosecute.
Such as the Pudong New Area, Shanghai, Pudong New Area District Procuratorate jointly with the Communist Youth League to start the 'v pre-inspection regimes'. According to its provisions, to minor criminal cases, first of all by the Prosecution of minors find out the facts of the criminal prosecutor's office that the compliance with applicable conditions of slow v., to send the suspects 'proposals for community corrections', to the criminal suspects Family issued a 'Family assistance and education proposals' in order to seek their consent. Then, the Juvenile Criminal Prosecutor's Office sent to the community work service stations' community correction notice 'by the juvenile criminal prosecution service, community work service stations and crime, minors and their legal representatives signed a' community service agreement '. At the same time the formation of a juvenile criminal prosecution service, community work service station consisting of one representative of each inspection team is responsible for the daily inspection of the minors. In the study period, community work service stations designated by the professional social workers to supervise the minor misconduct in engaging in public work in the community and arrange for them to participate in community related activities. A week to arrange for them to communicate with their family members, and communication in order to understand their mentality. Inspection team on a monthly basis misconduct in the situation of minors summary. After the expiration of inspection by the inspection team's visit to write a written submission to the minors of Public Prosecutions. Punishable by examination of the inspection team concluded, based view of criminal suspects have pleaded guilty to a good attitude and repent, according to community service records, and integration of families, victims and other factors that have the intention of repentance, and good performance of the juvenile criminal the suspect decided to immunity from prosecution. While there is no intention of repentance, showing poor juvenile criminal suspects were immediately prosecuted. 
As the Law of Criminal Procedure not provided for suspension of prosecution system, parts of the 'experimental' approach thus shows the non-uniform situation. But there are also basically the same content. These elements are mainly embodied in a People's Procuratorate, 'With regard to the criminal prosecution of minors in the system to suspend the provisions of' that. According to the regulations, China's 'experiment' in the slow v. system includes the following aspects: the object is a minor; physical conditions are: (1) The offense of a minor nature, could be sentenced to three years imprisonment; (2 ) have a better help and education conditions; (3) In determining the 3 to 12 months During the inspection, had not committed a new offense; procedural conditions are: (1) of minors suspected of a crime to write guarantee; (2) Parents issued by the security books, and helping and educating the signing of an agreement with the prosecution; (3) approval by the Attorney-General to decide whether to suspend prosecution; (4) handling bail procedures; (5) regular assistance, education and visits; results two ways: not committed new crimes, and draw the decision not to prosecute crime, or has been prosecuted. 
However, some provisions of the Regional Prosecution Office of the suspension of prosecution while in practice 'has achieved good results, by the majority of the judicial workers and community welcome,'  but people on this controversy  showed that in some areas of China Public Prosecutor's Office to suspend prosecution of 'experimental', surviving in the different views. Although different views were far less than the number of published articles agree with those, but I think that on the one hand. Its opinion, there are ideas worthy of attention, on the other hand, their views may not be represented as the ratio of number of papers a few people, so we should be concerned not only to stay the prosecution of those who endorsed the system, and should listen to different views sound.
Second, stay the prosecution's argument: Value or question
With regard to whether China should implement a system to suspend prosecution of the discussion, the key has both positive and negative comments. Views positively in the discussions is more concerned about our country, stay the prosecution of the value, and negative views of those who reveal our country, to emphasize the problems stay the prosecution. Below we value these two kinds of comments and questions on a brief overview of the dispute.
More positive views of those who stay the prosecution of our implementation of the value judgments, be summed up in three main areas:
1, to suspend prosecution of juvenile offenders can promote genuine repentance and return to better reflect the 'punishment is a means, is the goal' penalty in principle.
Juvenile offenders from adult offenders are very different. Juvenile offender is still in the physiological and psychological development period, are very immature in all aspects. Some slip youth, both the perpetrators of social peace, but also a victim of society against the adverse environment. Although they are resorting to crime both subjective and objective factors, but the objective factors such as family, school and social negative impact of corruption is the main thing. Thus they both seem a piecemeal sentencing convicted of injustice, is not conducive to the comprehensive management of juvenile delinquency is not conducive to the protection of minors grow up healthily. Stage in the prosecution of juvenile criminal suspects v. slow to implement, through the careful arrangement of community service work, so that misconduct in the performance of juveniles responsible for their actions, establish the concept of self-respect and cultivate an active lifestyle, and guide them to act according to law, to prevent further breaking the law. The same time, reducing the need for their academic, employment and family life adversely affected.
2, suspension of prosecution is a manifestation of the principle of the proceedings.
Criminal prosecution is a high-cost national criminal activities, while China's current judicial resources that they are extremely limited. The Spear "