论公诉变更

公诉变更制度的设置,影响审判的公正、效率以及被告人合法权益的实现,但目前的刑事诉讼对此只有司法解释而无诉讼法规范。修改刑事诉讼法,应当设置这种规范。我国公诉变更权由检察机关享有,公诉的追加与内容的变更不得妨碍诉讼的正常进行与诉讼效率,同时应当保障被告人的辩护权,还应作出适当的审理时限规定。撤回起诉不得妨碍被告人获得公正审判的权利,并应明确撤回起诉具有不起诉的效力。

Research on the Regime of the Change of a Public Prosecution

The regime of the change of a public prosecution is closely linked with the justice and efficiency of a trial and the defendant's lawful rights and interests. However, apart from a judicial interpretation, there are no legal norms related to the regime in China's present criminal procedural law. Thus certain norms concerned should be adopted while we amend the Criminal Procedural Act. In China only the prosecution has the power to change a public prosecution. The supplement of a prosecution and the alteration of its contents shall not encumber the normal process or impair the efficiency of a criminal action. Furthermore, the right to defend the accused should be protected and a proper period should be prescribed in which the case must be tired. Withdrawal of a prosecution shall not infringe on the right of the accused to a fair trial. Moreover, an express statement should also be set forth that withdrawal of a prosecution has the same effect as nol pros.