限制和解不起诉裁量权的另一种思路

On Another Train of Thought of Limiting Criminal Settlement for Non-prosecution Discretion

《刑事诉讼法》修改实施后,我国检察机关新增和解不起诉裁量权,这为检察权滥用留下了滋生空间。尽管刑诉法及司法解释试图限制检察官这一裁量权,但其滥用之潜在危害仍然存在。传统法学理论提出了种种对策,但均因大而不当存在缺陷。基于此,在和解不起诉案件中,为实现限制检察官裁量权滥用之目的,应提倡"另一种思路":通过以权利制约权力模式、以权力制衡权力模式、以第三方约束权力模式来规制检察官和解不起诉裁量权之行使。

＂Criminal Procedure Law＂ revised after the implementation, the people＇s procuratorate is authorized a new power of non-prosecution discretion in criminal settlement, which may induce potential abuse of power. Although the criminal procedure law and judicial interpretations both attempt to limit that power, the risk of abuse still remains. The traditional legal theories have presented a variety of countermeasures, but none of them seems reasonable and practical. Consequently, in order to limit the discretion in the case of non-prosecution criminal settlement, another train of thought should be advocated： it may be an effective measure to limit procurator＇s non-prosecution discretion with the right to limit power model, balance power model and to constrain power model by the third party