Present situation of procuratorial organs’ pre-litigation work. Mainly from two aspects:
1. The function of investigation and guidance needs to be further developed. Influenced by the long-term investigation centrism, the procuratorial organs tend to conduct formal review of cases transferred by the investigation organs, but the supervision and guidance of the investigation organs in handling cases are insufficient. As the relevant scholars have said, "In the context of our country, the investigation power lacks judicial control, and it is not enough to rely solely on constraints for the relationship between the procuratorial organs and the public security organs. It is very urgent and important to strengthen the supervision of the investigation power by the procuratorial organs."
2. The application of non-prosecution discretion needs to be deepened. The stage of examination and prosecution is an intermediate link to undertake investigation and trial, which plays an important role in "connecting the preceding with the following" and "controlling the customs". From 2008 to 2015, the number and proportion of people sentenced to "light probation" by national courts increased year by year, and this year it is close to 50%. It can be seen that a considerable proportion of criminal cases brought to court by procuratorial organs in China are actually sentenced to "light probation", especially some criminals who are exempted from criminal punishment or have a single supplementary punishment. However, if the procuratorial organs can filter some criminals who have been sentenced to "light probation" in advance in the pre-litigation stage, they may achieve a win-win situation of "reducing the burden of suspects’ complaints and saving judicial resources". The insufficient use of non-prosecution discretion has become the main reason for the lack of pre-litigation filtering.
Optimization of pre-litigation filtering mechanism. You can start with the following three aspects:
1. Broaden the scope of application of conditional non-prosecution. At present, conditional non-prosecution only applies to specific types of juvenile criminal cases, which is strictly defined as "a penalty of less than one year’s imprisonment", which narrows the scope of application of conditional non-prosecution. In fact, the connotation of conditional non-prosecution is more consistent with the lenient system of confession and punishment. The setting of the trial period of non-prosecution can test whether the suspect’s confession and repentance are sincere enough, and effectively prevent the lenient system of confession and punishment from becoming a "safe haven" for "experienced" suspects to escape punishment. Moreover, the education and reform function of conditional non-prosecution will not be different for minors or adults, nor will it be different for different types of cases, so it should not be subject to too many restrictions. It should be noted that the application of conditional non-prosecution is partially covered by the discretionary non-prosecution system. The application condition of the latter is "no need to be sentenced to punishment or exempted from punishment". In practice, suspects who meet the conditions of conditional non-prosecution may be classified as "discretionary non-prosecution that can be exempted from punishment" because of circumstances such as surrender and meritorious service, thus forming a "jump" from conditional non-prosecution to discretionary non-prosecution, which leads to a greatly reduced application rate of conditional non-prosecution. To sum up, the scope of application of conditional non-prosecution should be appropriately expanded.
2. Improve the conditional non-prosecution inspection mechanism. In order to prevent the period of supervision and inspection from affecting the application rate of conditional non-prosecution, we can consider transferring the power of supervision from the post prosecutor who undertakes the case to a specific department of the procuratorial organ or relevant administrative organs and community organizations. On this basis, the investigation mode of "strict entry and lenient exit" is constructed, that is, the investigation period is appropriately shortened to alleviate the burden of the procedure, and the evaluation mechanism before non-prosecution is strengthened to ensure that qualified suspects enter the procedure.
3. Scientifically set procedural restrictions. Procedural restriction is a necessary measure to ensure that procuratorial organs’ discretion not to prosecute is on the right track. At present, the judicial transformation of the procuratorial organ’s case handling method has become a hot topic in theory. For the demands of the theoretical circle, we should base ourselves on procuratorial practice, and should not mechanically pursue the overall judicial transformation, but should improve the final decision of the case, major and controversial procedural decisions, and areas prone to corruption. At this stage, we should focus on the judicial reform of the process of lenient negotiation of confession and punishment and the decision-making process of non-prosecution. The following measures can be taken: First, set up a case-handling center so that the decision and evaluation of confession and punishment can be carried out in the sun. In the case handling center, synchronous audio and video recordings are set up. In addition to prosecutors and criminal suspects and their defense lawyers going outside, members of the discipline inspection team, people’s supervisors, deputies to the National People’s Congress, CPPCC members or victims can also be invited to participate in supervision. At the same time, special auxiliary personnel are required to record the whole process and file it with the case. The second is to formulate and publicly admit guilt and punishment, lenient non-prosecution conditions and procedural standards, and reduce the "rent-seeking space" for prosecutors and defenders; The third is to create a full coverage mechanism of legal aid for non-prosecution cases. At present, the system of pleading guilty and lenient punishment has been implemented with the help of the lawyer on duty. For those who decide not to prosecute and end the proceedings, the lawyer’s "effective defense" should be emphasized. Therefore, legal aid should be strengthened to better safeguard the legitimate rights and interests of criminal suspects.
(Author: People’s Procuratorate of Lucheng District, Wenzhou City, Zhejiang Province)