慎诉的理论展开与制度完善

Theoretical Development and System Improvement of Careful Prosecution

少捕慎诉慎押是新时代重要的刑事司法政策。慎诉要求刑事追诉兼具合法性与合理性,检察机关在严格把握起诉条件,保证起诉合法性的同时,应强化起诉必要性审查,充分行使不起诉裁量权,发挥不起诉制度的价值功能,减少不必要、不适当的刑事追诉。我国刑事诉讼制度层面对检察机关不起诉裁量权长期持谨慎适用、谨防滥用的态度,对不起诉制度设置严格的适用条件与程序要求。实践中不起诉裁量权运行情况不甚理想,整体上限制有余而适用不足,难以满足实践中的现实需求,刑事不起诉适用面临制度、机制、理念三重困境。欲激活检察机关不起诉裁量权,化解刑事不起诉适用困境,宜从以下方面进行完善:转变检察办案理念,完善绩效考评机制;完善不起诉制度,扩大不起诉范围;构建并完善不起诉裁量权监督制约机制。

It is an important criminal justice policy in the new era to arrest less, prosecute with caution and detain with caution. Caution requires criminal prosecution to be both legitimate and reasonable. While strictly grasping the conditions of prosecution and ensuring the legality of prosecution, the procuratorial organs should strengthen the review of the necessity of prosecution, fully exercise the discretion of non prosecution and give play to the value function of the system of non prosecution to reduce unnecessary and inappropriate criminal prosecution. China’s criminal procedure system has long held a cautious attitude towards the non prosecution discretion of the procuratorial organs, and set strict application conditions and procedural requirements for the non prosecution system. In practice, the operation of the discretion of non prosecution is not very ideal. On the whole, there are more restrictions but less application, which is difficult to meet the practical needs. The application of criminal non prosecution is faced with three dilemmas of system, mechanism and concept. In order to activate the discretion of non prosecution of procuratorial organs and resolve the dilemma of application of criminal non prosecution, we should improve it from the following aspects: change the concept of prosecuting cases and improve the performance evaluation mechanism;improve the system of non prosecution and expand the scope of non-prosecution;construct and improve the supervision and restriction mechanism of non prosecution discretion.