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System Establishment and Perfection of Conditional Non-prosecution

Author: ChengKun
Tutor: HuXueJun
School: Nanchang University
Course: Legal
Keywords: conditional non-prosecution system relative non-prosecution systemestablishment
CLC: D925.2
Type: Master's thesis
Year: 2013
Downloads: 18
Quote: 0
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Abstract


The establishment of conditional non-prosecution system is significant to our country’s Criminal Justice, but the mode of current legislation, neither is the Procuratorial Organs’pilot mode from juridical practice, nor is the open mode advocated by The Theorists abroad. Also it has following problems, such as difficultly in distinguishing with relative non-prosecution system, with narrow application scope, lacking of clear and effective additional conditions and the institution to investigate and help&education, and etc. The Academia has not yet reached a consensus on how to build the applicable conditions, procedures and supervision mechanism for conditional non-prosecution system so that it could effectively play its role. It still needs further research and discussion.Conditional non-prosecution system is in line with the development trend of the Doctrine of Prosecuting Discretion, which reflecting the the Cautious Punishment and the concept of "Restorative Justice", and a concrete manifestation of our criminal policy of complementariness of leniency and strictness. A more mature conditional non-prosecution system has been built in countries like Germany, the United States, Japan, China, Taiwan, Macau.The Procuratorate of Beijing, Shandong and other places in China has also been some pilot experience. These provide the theoretical policy and practical basis for conditional non-prosecution system.Once we start to build the specific systems, the scope of application,the term and conditions, subsidiary conditions, applicable procedures should be further clarified. Supervision Mechanism, Restriction Mechanism, Relief System, helping&educational organization and so on support mechanisms should be sturdy. To define the mainly applicable range of conditional non-prosecution system, it is not be limited to qualify its main identity but should consider the integrated factors in the entire case, and combine with the authorized provisions and prohibitive regulations to determine the main part.To define the range of the applicable cases, the key is that to distinguish the difference among conditional non-prosecution, initiating public prosecution and relative non-prosecution. Conditional non-prosecution should be formulated synthetically from the premise, term of penalty, the situation of the crime subject, the plot of the case, the public interest demands and so on. To define the obligations that the subject of conditional non-prosecution should comply with, we can adopt the unite way of general obligations and individual obligation.Meanwhile, we should have a standard to institute, to make final decision after investigation, to formulate the executive program, to set up sound help&education organization, to clarify the inspection due time, frequency, requirements, procedures and results, to endow the suspects, the victims and the investigation authorities with supervision, restriction and relief right on the conditional non-prosecution, to perfect the self supervision and restriction mechanism of the procuratorial organs, to guarantee the system carrying out correctly and effectively.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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