The System of Prosecuting Authority to Withdraw Prosecution
|School||East China University of Political Science|
|Keywords||withdrawing prosecution procedure improvement alternation of prosecution power|
The system of prosecuting authority to withdraw prosecution is one of the changing rights of prosecution,and the changing right of prosecution belongs to prosecution rights. The first part introduces that the right of withdrawing prosecution is the organic component of prosecution rights and reflects the procuratorial organs disposing prosecution rights. And, it is also the extension of prosecution simplism to the trial stage, which means the prosecuting authority can withdraw the prosecution if litigation conditions do not exist. The absence of legal status of withdrawing prosecution right which directly influences the relation among prosecution,attorney and the court, influences the rights and interests of defendants and the judicial power of the court greatly. Withdrawing prosecution as the the criminal litigation procedure has four basic characteristics which are legal procedure, identical subject, restrictive right and finite time. Withdrawing prosecution right is the litigation procedure claim not a final decision. It can only cause the failure of public prosecution and the change and the stop(interruption) of the litigant phase.The second part introduces that our country once made provisions about the related contents of withdrawing prosecution in the code of criminal procedure. The first version of the criminal procedure code provided that the prosecuting authority could withdraw prosecution in the procedure of before court review. However, the criminal procedure code after 1996 canceled the right of prosecuting authority to withdraw prosecution. Shortly, there are shadows of withdrawing prosecution in the interpretation issued by the supreme people’s court and the regulation issued by the supreme people’s procuratorate. This inconformity between legislation and judicial interpretation causes fierce controversy between the theory and the practice. This thesis analyzes the data of withdrawing cases of Z province from 2008 to 2010 and discuses the problems and reasons of withdrawing cases. It also analyzes the situation of abusing withdrawing prosecution power in the law practice and the reason of withdrawing prosecution.The third part introduces that the prosecuting authority has withdrawing prosecution right in many countries and districts. For examples, the federal criminal procedure rules, Japan’s criminal procedure law and British criminal procedure law. They all provide that the prosecuting authority has withdrawing prosecution right in specific cases. According to the difference of legal tradition and legislative technology, many countries and districts have different rules about the system of prosecuting authority to withdraw prosecution. Therefore, the system of withdrawing prosecution gets a wide range of confirmation either in continental law system countries or in countries of Anglo-American law system.The forth part introduces that there are many drawbacks in the system of withdrawing prosecution in our country. In the normal legal practice, the apply of the system of withdrawing prosecution also has many problems. The author puts forward some suggestions to the existing problems of he system of withdrawing prosecution in three aspects which are perfecting withdrawing prosecution legislation, standard withdrawing prosecution specific procedures and contents and strengthen withdrawing prosecution restriction mechanism to improve the professional quality of the prosecutor, improve case-solving ability, improve the quality of public prosecution cases and promote justice.