The Research on the System of Withdrawing Public Prosecution
|School||East China University of Politics and Law|
|Keywords||Withdrawing public prosecution Consummating legislation Remedy procedure|
Withdrawing public prosecution is a kind of law action,which procuratorial machinery according to the certain procedure, in legal time limit, discharge the accusation or withdraw the appeal when discovery some condition that it is not suitable to pay the accused the trial or can’t determine guilt to the accused after the accused was prosecuted. Withdrawing public prosecution have its deep rationale: First, the power of withdrawing public prosecution is one of powers and functions of the public prosecution in criminal suit; Next, Withdrawing public prosecution accords with the principle of charge and try separated; Once more, Withdrawing public prosecution conforms to the ism of the freedom in prosecution. The value of Withdrawing public prosecution embodies the pursuit of protecting human right and efficiency.Currently, main problems in the system of withdrawing public prosecution includes: First, the absence of legislation for withdrawing public prosecution. The modified code of criminal procedure law does not rule definitely the power of procuratorial machinery to withdraw public prosecution. The direct basis of withdrawing public prosecution is correlative rules in the Rules of Criminal Suit by the Supreme People’s Procuratorate and the Explanation of Some Problems on Performing the Criminal Procedural Law of PRC by the Supreme People’s Court. Second, there are problems in justice practice: the scope of withdrawing public prosecution is too general and too loose. The power of withdrawing public prosecution is abusing optionally. The legal effect after withdrawing public prosecution is not definite. The times of withdrawing public prosecution is not limited. There are not remedies of withdrawing public prosecution for the victims and the accused.At present in the world, many countries have established the system of withdrawing public prosecution. The legal provisions and actions of withdrawing public prosecution of Taiwan, Hong Kong and other nations and regions have some reference to perfect the system of withdrawing public prosecution in China.First, set up the principles of presumption of innocence, protection of human rights and so on.Second, consummate the legislation on withdrawing public prosecution, which includes:1. Stipulate the system and the matter of withdrawing public prosecution explicitly in criminal procedural law, and distinguish the matter between discharging the accusation and withdrawing the appeal. It is suggested that cancel the provision of presumption of withdrawing public prosecution and the condition of unclear fact, insufficient evidence cannot be the matter of withdrawing public prosecution.2. Draw accurate rules for the phase, times, form, the power of decision, disposing time limit and so on.3. Standardize the subsequent works to withdrawing public prosecution.4. Consummate the remedy procedure to assure the legal rights of the accused and the victim.