公诉权滥用形态的发展

域外各国突破传统以实体作为判断公诉权滥用的标准，引入正当程序理念确立了多元的公诉权滥用形态，包括违反迅速审判的起诉、违反一事不再理的起诉、违法诱惑侦查的起诉、报复性起诉、歧视性起诉等等。我国应当借鉴其立法及实践经验，重新认识和界定我国的公诉权滥用形态，以更好地规范公诉权的运行。     

论新刑事诉讼法实施后的公诉变更问题

公诉变更,以公诉的客观性和效率性为正当性依据。现行公诉变更制度存在法律基础欠缺,"两高"司法解释不够协调,以及相关规定不完善等问题。其运行弊端表现在几种变更形式混淆,撤回起诉过于随意,变更公诉行为不规范,在决定时和决定后忽略被告人程序与实体权益保障等。公诉变更制度完善首先需要完善立法,确认公诉变更形式,设置变更权行使时间,规定撤回起诉决定的效力,同时赋予相关方救济权。立法完善前,最高人民检察院应当确认法院对撤回起诉的司法审查,检察机关和法院应当对滥用变更权及变更公诉不规范的行为进行规范。最高人民法院亦应明确对检察机关要求撤诉进行审查的时间和标准,同时尊重被告方的异议权。     

对我国检察机关撤回起诉制度在实践方面的问题研究

公诉案件的撤回起诉这一制度是我国刑事公诉变更制度中的一项重要内容,同样也是检察机关自由裁量权的一种体现,它既是一种程序补救机制,也是检察机关代表国家在公诉过程中行使诉权,贯彻有错必纠原则的根本要求.     

论公诉裁量权的完善

本文通过对起诉法定和起诉便宜两种公诉权行使形式的优劣比较后,从法理上分析了公诉裁量权的优势和必要性,并提出了对于我国刑事诉讼法中公诉裁量权的完善建议。     

浅析公诉转自诉制度存在的问题

在我国刑事诉讼程序中,公诉转自诉制度的设立目的在于制衡国家公诉权,维护不起诉被害人的合法利益,防止公诉权的滥用。然而现实存在的立法缺陷、制度不合理、以及相关配套制度不完善等问题导致这一制度并没有达到预期的目的,公诉转自诉案件刑事被害人依然面临着诉讼难的问题。     

简论公诉权不可分割

简论公诉权不可分割刘义恩所谓公诉权，是指国家法律赋予检察机关的，以认定刑事被告人是否有罪及有何罪的实体评断为基础而行使的控诉权。公诉权是检察机关特有的一项重要权力，是检察权的重要组成部分。按照法律规定，公诉权包括起诉、免予起诉、不起诉等内容。这些内容...     

略论相对不起诉制度的内在冲突及其解决

相对不起诉是刑事诉讼法中的重要制度,该制度模式下的公诉机关虽无“犯罪成立”宣告权,却有“犯罪行为存在”确认权,造成了公诉机关与虽被不起诉但同时主张自己之行为也非“犯罪行为”的犯罪嫌疑人在认知和利益诉求上发生冲突。应通过建立相对不起诉前的控辩合意制度、尊重被不起诉人获得司法终裁权等改革,使目前依公诉权单方意志进行的“职权性相对不起诉制度”,转变为承认被不起诉人程序主体地位的“参与性相对不起诉制度”。     

刑事诉讼中的"报复性起诉"

我国司法实践中不时出现检察机关为打击报复举报人、新闻记者、辩护律师等而提起公诉的现象.对于这类报复性起诉的行为,现有制度不能提出独立的程序抗辩.为了保护被告人权利,美国建立了报复性起诉辩护制度,被告人有权请求法院审前驳回检察机关基于报复的动机而提起的公诉.我国也应当建立此项制度,以防止公诉权滥用.     

分权理论在防止公诉权滥用中的运用

分权作为防止权力滥用的基本方法,同样可运用于防止公诉权滥用。在宪法框架下,公诉权附属于行政权,或成为独立的法律监督权,与其他政治权力分立制衡;在诉讼程序中,公诉权独立于侦查权和审判权;在公诉权内部表现为公诉权主体的多元化,检察一体化下检察官之间的分权,公诉提起权、公诉决定权与支持公诉权的分权。     

现行刑事不起诉当事人自我救济制度之不足

所谓刑事不起诉当事人自我救济 ,是指在刑事诉讼进行的过程中 ,案件当事人对公诉机关作出的不起诉决定不服 ,为维护自身合法权益 ,依照法定的程序和途径自己寻求救济。我国刑事不起诉当事人自我救济制度主要是由《刑事诉讼法》第一百四十五条、第一百四十六条和第一百七十条加以规定的。这些规定在重视保障个体利益、建立以自诉权监督制约公诉权的机制和进一步贯彻无罪推定原则方面迈出了可贵的一步。但通过理论分析和实践证明 ,我国现行法律确立的刑事不起诉自我救济制度还比较粗疏 ,存在一些不足 :一、造成公诉权与自诉权关系的矛盾公诉权…     

The end of police prosecutions: Symptom of changing values in english criminal justice

This article contrasts the traditional English prosecutorial system, and its underlying values, with the new Crown Prosecution Service and the related values which have emerged from five years of official study and planning of prosecutorial reform. The traditional system reflected the English ideal of the amateur generalist. Under this system the police, acting as citizens, undertook most prosecutions, hiring legal assistance as needed. Ower the last twenty years, about three-quarters of the English police forces set up prosecuting solicitors departments. While these institutions give professional legal assistance to many police, they were purely local arrangements without statutory basis and legally similar to the traditional ad hoc arrangements. In 1986 the Crown Prosecution Service will be initiated. This is the product of a process of development which includes a Royal Commission, two governmental working parties, a white paper, a bill, and a managerial study. The result is a hierarchical structure of legal professionals independent of the police who will handle virtually all prosecutions. This prosecutorial structure exhibits the characteristics and values of modern rationalistic bureaucracy described by Max Weber. The adoption of these values in English criminal justice indicates the likelihood of change in other aspects of the system which rest on the conflicting traditional values.     

Prosecutors' Discretionary Use of the Grand Jury to Initiate or to Reinitiate Prosecution

This study examines the exercise of prosecutorial discretion in two areas: the decision to initiate prosecution by indictment (in lieu of a preliminary hearing) and the decision to reinitiate prosecution by indictment after preliminary hearing discharge. To explore concerns about prosecutors' use of the grand jury to pursue prosecution in cases with insufficient evidence to convict at trial, the author studied prosecutors' practices in murder cases in Cook County, Illinois. To gather the information the author collected disposition data for prosecutions initiated by grand jury and by preliminary hearing, interviewed prosecutors, and examined prosecutors' case documents indicating reasons for declining or pursuing prosecution of discharged cases. The data show similar conviction rates for prosecutions initiated by grand jury and those by preliminary hearing but a significantly lower rate for prosecutions reinitiated after discharge. Three reasons for the latter finding are discussed: special evidentiary characteristics of reinitiated cases, seriousness of the offense studied, and prosecutors' special motivations and practices in serious cases. The author suggests that although prosecutors typically are constrained by practical, organizational, professional, and ethical concerns, they may in extraordinary situations reinitiate prosecution of weak cases. In light of the study's findings, the author assesses several proposals to eliminate or restrain prosecutors' power to reinitiate.     

Prosecuting 'Gross' Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service

This article examines prosecutions of health care professionals for gross negligence manslaughter following fatal errors committed in the course of their work. Unease has long surrounded the use of 'gross negligence' as a form of criminal liability, and particularly as it applies to health care professions operating in high-risk settings. The recent dramatic rise of such prosecutions calls for a closer understanding of the processes by which important prosecutorial decisions are made. In particular, this calls for an investigation into the exercise of discretion by prosecutors in interpreting the loosely defined and contested concept of gross negligence. This article analyses data obtained from a statistical analysis of 'medical manslaughter' cases and also from interviews with crown prosecutors. Discussion of the main findings leads to the conclusion that the offence of gross negligence manslaughter is incapable of any objective and fair measurement and ought to be abolished.     

Toward a Feminist State: What Does ‘Effective’ Prosecution of Domestic Violence Mean?

This article examines domestic violence criminal prosecutions and addresses what 'effective' prosecutorial action means in such cases. The argument elaborates on a point recently articulated by the UN Special Rapporteur on Violence against Women, which links effective prosecution of violence against women to the creation of a less patriarchal society. The article concludes that 'effective' prosecution of domestic violence means prosecution which constitutes the State as less patriarchal ceteris paribus .     

Examining Prosecutorial Discretion in Federal Criminal Cases: Legal and Extra-Legal Determinants of Declination and Charge Change Decisions

Abstract

From 2000 to 2010, the federal criminal caseload increased roughly 50% with a large portion of this increase attributed to the rise in immigration prosecutions. These changes coupled with recent Supreme Court decisions rendering the guidelines advisory have renewed calls for research examining prosecutorial discretion, particularly with respect to the influence of legal and extralegal factors on charging and bargaining decisions. This study utilizes data (2002–2010) from the Federal Justice Statistics Program database housed within the National Archive of Criminal Justice Data (NACJD). More specifically, the current research examines prosecutorial decisions to decline to charge federal arrestees and to make any changes to the charge from the arresting offense. Results from the multilevel, multivariate models reveal that both extra-legal and legal factors were influential of these decisions. Disaggregated models also revealed considerable variation across different offense types. Finally, districts with higher caseloads had lower odds of a prosecutorial declination and charge change.     

Crack as Proxy: Aggressive Federal Drug Prosecutions and the Production of Black–White Racial Inequality

In this article, we empirically examine jurisdictional variations in federal crack prosecutions to measure whether aggressive crack prosecutorial practices are associated with racial inequality in federal caseload characteristics and outcomes. Building on theories that address the production of inequality in institutional settings, we hypothesize that U.S. Attorneys’ offices that are more proactive in charging defendants with crack, relative to other kinds of drugs, and relative to case strength and seriousness, will demonstrate higher rates of black–white racial inequality in case outcomes across the entire criminal caseload. Consistent with theories of institutional racism, our findings demonstrate that aggressive crack prosecutions at the district level are a strong predictor of black–white inequality in conviction rates across the entire criminal caseload, and a much more modest predictor of inequality in final sentence outcomes. We conclude by discussing the importance of organizational‐level empirical analyses for more effectively uncovering the conditions under which inequality can and does flourish in legal settings, and suggest possible future lines of inquiry along these lines.     

我国检察权的反思与重构——以公诉权为核心的分析

检察机关的基本职能是公诉 ,检察权在本质上主要表现为公诉权 ,以公诉权为基本内容的检察权在本质属性和终极意义上应属于行政权。检察机关在刑事诉讼中的各项权力都是具体的诉讼程序性权力 ,与所谓的法律监督机关、法律监督权并不存在必然的关联性。应该按照检察机关就是公诉机关的思路去改革司法制度 ,建立以公诉机关为核心、主导的审判前程序 ,同时改革现行的逮捕和其他侦查措施的审查批准制度。     

English Prosecutions: Twenty Years of Changing Institutions and Values

Twenty years ago England had a prosecutorial system founded upon traditional values. In 1986, a Crown Prosecution Service founded upon the values of modern rationalized bureaucracy will be introduced. In 1966, English prosecutions were overwhelmingly police conducted, often without legal assistance. By the mid-seventies, a majority of police forces had created ad hoc, non-statutory prosecuting solicitors departments. In 1986, a statutory professional prosecuting national bureaucratic service independent of the police will replace the traditional prosecutorial structures. This twenty-year change provides an excellent example of a Weberian movement from traditional to bureaucratic institutions and has enormous implications for further change in remaining traditionally based English criminal justice institutions.     

INCREASING THE PROPORTION OF DOMESTIC VIOLENCE ARRESTS THAT ARE PROSECUTED: A NATURAL EXPERIMENT IN MILWAUKEE*

Research Summary: Mandatory and pro‐arrest policies in domestic violence incidents have increased strains on prosecutorial and court resources. They have also brought to prosecutors many cases in which victims never wanted batterers charged and prosecuted. Prosecutors are faced with the dilemma of (a) screening out difficult cases up front and expending resources on fewer but more winnable case or (b) prosecuting a larger number of cases as adequately as resources will allow. We studied a natural experiment that resulted when the Milwaukee prosecutor liberalized his screening policy to double the number of domestic violence case filings. After the new screening policy was implemented, time to disposition doubled, convictions decreased, the prevalence of pretrial crime increased, and victim satisfaction declined. Policy Implications: The results do not support the idea that domestic violence cases can be readily prosecuted without regard for victim desires. To commit to such a policy would require a substantial commitment of additional staff, resources to collect additional types of evidence, and a willingness to try a substantially larger number of cases.     

Cross-national investigation and prosecution of intellectual property crimes: the example of “Operation Buccaneer”

“Operation Buccaneer” was the name given to a law enforcement operation against “DrinkOrDie,” a highly organised but globally dispersed Internet-based software piracy group. The concerted enforcement action, led by the US Customs Service and Department of Justice, extended to several European countries and Australia. This paper contrasts the legal consequences that flowed, with numerous suspects pleading guilty in the United States, some contested prosecutions in the United Kingdom, and a sole Australian suspect facing extradition to the United States to face charges. Operation Buccaneer illustrates the cross-national reach of both Internet-based intellectual property crime and the law enforcement response, as well as some of the complexities that arise in applying jurisdictional concepts such as the “double criminality” requirement for extradition in this evolving prosecutorial landscape.