检察机关对告诉才处理案件提起诉讼的原则--对刑法第98条的解读

On the Nature about the Suits of the Cases Handled Only with Complaint Prosecuted by People's Prosecuting Bureau:An Interpretation of Article 98 in the Criminal Law of China

刑法第98条规定,告诉才处理案件的被害人因受强制、威胁无法告诉时,人民检察院也可以告诉。从诉讼原理上看,检察机关提起的这种"诉"是自诉而非公诉,其实际是以被害人法定代理人的身份代为提起并参加诉讼的。检察机关进行的此类活动本质上是公诉权对自诉权干预的一种形式,其体现公权力的治理功能,发挥公诉权对自诉权的扶持和帮助作用。但立法规定的这种"干预"在干预的理由、干预的时点、干预的方式等方面有待完善。为保证控、辩平衡,检察机关在考虑为被害人行使自诉权提供扶持和帮助时需审慎,把握一定的"度"。

The of article 98 in our criminal law regulates that the People＇s Prosecuting Bureau can file a lawsuit in allusion to the case handled only with complaint when the victim is in coercion or threat. Look from litigation principle, the lawsuit filed by the People＇s Prosecuting Bureau is not a public prosecution but a private prosecution and actually the People＇s Prosecuting Bureau is taking the place of the victim in according to the identity of his legal representative to file and take part in lawsuit. In fact, this kind of activity the People＇s Prosecuting Bureau engaged in is a form of the right of public prosecution intervening the right of private prosecution and it embodies the governance function of public power and plays a role of support and assistance from the right of public prosecution to the right of private prosecution. Nonetheless, such ＂intervention＂ regulated by the criminal law is not perfect in the aspect of intervention reason, intervention time point, intervention pattern. In order to ensure balance between the accusers and the defendants, the People＇s Prosecuting Bureau must keep cautious and master certain degrees when he consider to provide support and assistance for the victim.