Initiating a public prosecution refers to a litigation activity in which the People's Procuratorate, on behalf of the State, submits a criminal suspect to the People's Court for trial after reviewing a case that the public security organ has transferred for prosecution and that the People's Procuratorate has investigated and concluded the transfer of the case for prosecution by itself.[1]
Chinese name
Institute a public prosecution
Foreign name
initiate a public prosecution
Source
Criminal Procedure Law of the People's Republic of China
Public prosecution, as a type of prosecution, refers to a litigation activity in which the People's Procuratorate conducts a comprehensive review of the cases that have been investigated and transferred by the public security organs for prosecution, and submits criminal suspects who should be investigated for criminal responsibility to the People's Court for trial.Initiating public prosecution is a special power of the People's Procuratorate, and no other organ, organization or individual may exercise it.As the prosecution organ of the country, the People's Procuratorate should exercise its right of prosecution carefully to ensure that criminal acts are punished and that innocent people are not investigated for criminal responsibility, so as to protect human rights.
According to the provisions of Chinese law, it is the power of the People's Procuratorate to initiate a public prosecution. All cases that need to be prosecuted shall be reviewed and decided by the People's Procuratorate.The People's Procuratorate shall conduct a careful and comprehensive review of the case transferred for prosecution after the public security organ has concluded its investigation. It must find out whether the facts and circumstances of the crime are clear, whether the evidence is true and sufficient, whether the nature of the crime and the charges are correctly determined, whether there are any omitted crimes and other persons who should be investigated for criminal responsibility, whether they belong to situations where criminal responsibility should not be investigated, and whether there areIncidental civil actionWhether the investigation is legal.When examining a case, the People's Procuratorate shall interrogate the defendant and may interrogate witnesses and victims.If the People's Procuratorate considers that the facts of the defendant's crime have been found out, the evidence is reliable and sufficient, and criminal responsibility should be investigated according to law, it shall make a decision to prosecute in accordance withCriminal jurisdictionTo the people's court.
Related concepts
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indictment
People's ProcuratorateWhen deciding to prosecute, an indictment shall be prepared.The indictment shall clearly record: ① the name, gender, age, native place, address and occupation of the defendant, whether he has ever been subject to criminal punishment, and the year, month and day of his arrest. ②Criminal facts and evidence, including the time, place, process, means, motivation, purpose, harm caused by the defendant's crime, as well as various evidences sufficient to prove the defendant's crime. ③The basis and reasons for prosecution include the criminal law provisions violated by the defendant, the nature of the crime, the responsibility for the crime, and the conditions for a lighter or heavier punishment.aboutComplicityThe respective criminal responsibilities of the defendants shall be clearly stated in the case of.When the People's Procuratorate initiates a public prosecution, it shall submit the indictment to the People's Court together with the case file and evidence.
be exempted from prosecution
according toCriminal Procedure Law of the People's Republic of ChinaArticle 101 stipulates that the People's Procuratorate may be exempted from prosecution if the defendant's act has constituted a crime, but it is not necessary to sentence or exempt from punishment according to the Criminal Law.A written decision on exemption from prosecution shall be made.The People's Procuratorate shall make a decision not to prosecute a case transferred by the public security organ for prosecution if it finds out that one of the following circumstances exists: ① the defendant's act does not constitute a crime, or the facts of the crime are not committed by the defendant; ②The limitation period for prosecution has expired; ③Exempted from punishment by a special amnesty; ④In accordance with the Criminal Law, the case shall be handled only after being told (seeTell truth）The crime of failing to tell or withdrawing; ⑤The defendant died; ⑥Other laws provide for exemption from investigation of criminal responsibility.Non prosecution shall be madeNon prosecution decision。The decision of exemption from prosecution or non prosecution shall be announced publicly, and the decision of exemption from prosecution or non prosecution shall be handed over to the defendant and his unit.If the defendant is in custody, he shall be released immediately.
Institute a public prosecution
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system
Most countries in the world implement the system of public prosecution by procuratorial organs in criminal proceedings.In Japan, the country pursues the principle of prosecution, and the court does not accept itcase of private prosecution；All criminal cases accepted by courts should be prosecuted by prosecutors.Federal GermanyCriminal Procedure LawIt is stipulated that public prosecution is the function of the procuratorial organ.In Yugoslavia, investigating crimes and prosecuting offenders are the responsibilities of procuratorial organs, and the procuratorate is the national organ responsible for prosecuting criminal cases.
In criminal proceedings in the United States, the system of prosecution by prosecutors is also practiced, butAmendment to the Constitution of the United StatesArticle 5 stipulates that the people shall not be declared guilty of death or dishonour unless a grand jury has initiated a public prosecution.The crime of dishonour is essentially the same as felony.Therefore, for all felony cases tried by the federal court, the indictment of the prosecutor must be reviewed and decided by the grand jury, and for misdemeanor cases, the prosecutor will directly bring a lawsuit to the court.In about half of the states, felony cases can be brought directly to the court by prosecutors without a grand jury.Except for capital offense, the defendant may waive the right to review the public prosecution by a grand jury.The grand jury reviews the prosecution and only examines the evidence presented by the prosecutor.The defendant has no right to present evidence and attend the grand jury.After examination, if most of the jurors believe that the prosecutor's accusation of the defendant's crime is based, the grand jury chief shall sign and approve the indictment.
The British first implemented the system of grand jury review and prosecution, but in 1933, the system was abolished.In principle, any citizen in the UK can prosecute criminal cases. In fact, most criminal cases are prosecuted by the police department. Some criminal cases can only be prosecuted after obtaining the approval of the Attorney General or the Prosecutor.The Attorney General and the Prosecutor are also responsible for the direct prosecution of certain major cases.
In French criminal proceedings, after investigation, all cases are prosecuted by the prosecutor, and transferred to the pre-trial judge or the prosecution court of the Court of Appeal for review and decision, and then transferred to the court for trial.
program
If the People's Procuratorate, after conducting a comprehensive review of a criminal case, confirms that the case meets the conditions for public prosecution stipulated in the Criminal Procedure Law of China, it shall initiate public prosecution in accordance with the following procedures:
（1） Make the decision to initiate a public prosecution and prepare the indictment
（2） Send the indictment together with the case file materials and evidence to the people's court, and formally file a public prosecution to the people's court
（3） It is recommended to apply summary procedure
Legal provisions
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according tocriminal procedure lawArticle 136 stipulates that all cases requiring litigation shall be reviewed and decided by the People's Procuratorate.This provision indicates that the People's Procuratorate must conduct a comprehensive review and make a prosecution orNon prosecutiondecision.Only cases that need to be prosecuted can be brought to the people's court.
condition
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The conditions for public prosecution can be divided into substantive conditions and procedural conditions[2]Article 141 stipulates that if the People's Procuratorate believes that the criminal facts of the criminal suspect have been found out, the evidence is reliable and sufficient, and criminal responsibility should be investigated according to law, it shall make a decision to prosecute, and bring a public prosecution to the People's Court in accordance with the provisions of judicial jurisdiction.This provision of China's Criminal Procedure Law is more consistent with the provisions of other countries, and conforms to the general legal principle of the public prosecution system.Specifically, the legal conditions for public prosecution are as follows:
1. The behavior of the criminal suspect has constituted a crime according to law.
2. The evidence is reliable and sufficient.
3. Criminal responsibility shall be investigated according to law.
