论我国撤回起诉制度的异化与矫正

Research on the Alienation of Withdrawal of Prosecution System in China and Its Correction

受诸多因素影响,撤回起诉在制度运行中发生异化,致使公诉权不当扩张。司法实践中,撤回起诉被滥用为规避无罪判决的工具,撤回起诉的法律效力不明导致刑事被告人诉讼地位客体化。以异化现象为切入点,可知撤回起诉的时间不合理、法院司法审查形式化、考核指标不科学、检察官伦理建设不足乃主要成因。规范撤回起诉的运行,需要标本兼治。具言之,将撤回起诉的时间严格限定在合议庭评议前;强化法院对撤回起诉的司法审查并根据申请时间、申请事由设置不同的审查模式;明确撤回起诉的法律效力并引入“一事不再理”原则;优化绩效考核指标并加强客观义务的建设。撤回起诉制度的改革思路应重点围绕转变当前行政化的运行模式并严格落实司法审查机制。

Subject to many factors,the withdrawal of prosecution system is alienated in its operation,resulting in the improper expansion of the power of public prosecution.In judicial practice,the withdrawal of prosecution is abused as a tool to avoid acquittal and the unclear legal effect of the withdrawal of prosecution leads to the objectification of the litigation status of the criminal defendant.Based on the alienation of the system,it can be seen that the unreasonable time of withdrawing prosecution,ineffective judicial review,unscientific assessment indicators and insufficient construction of Prosecutors’Ethics are the main causes.In order to standardize the operation of the withdrawal of prosecution system,we should address both the symptoms and root causes.Specifically,The time for withdrawing the prosecution shall be strictly limited to the time before the deliberation of the collegiate bench;strengthen the judicial review power of the court on the withdrawal of prosecution,and set up different review modes according to the application time and application reasons;clarify the legal effect of withdrawal of prosecution and introduce the principle of“non bis in idem”;optimize the indicators of performance appraisal and strengthen the construction of objective obligations.In the future,the reform of the withdrawal of prosecution system should focus on transforming the current administrative operation mode and strictly implementing the judicial review system.