论强制起诉制度在我国的构建

On the Construction of Mandatory Prosecution in China

我国现行刑事诉讼法第一百四十五条和一百七十条第(三)项规定了公诉转自诉制度,目的是加强对被害人的保护和强化对检察机关的监督,然而,无论是在理论层面还是在司法实践中,该制度均存在许多不足之处,使其几乎处于虚置状态,难以实现立法原意,而国外的强制起诉制度则可以很好地解决公诉转自诉所存在的问题。因此研究强制起诉在域外的相关立法,构建符合我国国情的强制起诉制度,对于改革我国的不起诉被害人自我救济制度具有重要意义。

The Article 145 and Item 3 of Article 170 of the present Criminal Procedural Law of People's Republic of China regulate the system which allows a public prosecution to be transferred to private one,for the purpose of protecting victims' rights,as well as strengthening the supervision and restriction over the prosecutorial organs.However,there are theoretically and practically still so many flaws with this mechanism that it has almost become useless,and as a result,the purpose cannot be fulfilled.On the other hand,there is no similar problem in some other countries or districts in the world,where Mandatory Prosecution has been established so that the non-prosecutorial discretion power granted to the prosecutorial organs can be restricted.Therefore,to improve the system of Non-Prosecution Victims' Self-Remedy,China should learn from others on how to entitle victims rights to appeal the courts to survey the non-prosecution decision made by the prosecutorial organs in way of legislation and implementation.