论未成年人附条件不起诉的适用问题及改善进路——以同酌定不起诉的关系为视角

On the Application Problems of Conditional Non-Prosecutionfor Minors and the Way Forward for Improvement— From the Perspective of the Relationship of Non Prosecution at the Same Discretion

如何精准把握在不同情况下选择适用未成年人附条件不起诉抑或是酌定不起诉,不仅在学界颇有争议,更是困扰基层检察机关的适用难题。未成年人附条件不起诉的适用条件概念界定不明晰、未成年人附条件不起诉与酌定不起诉的适用范畴存在重合、适用优先级缺乏明确标准仍然是目前面临的三大问题。为更好发挥两者各自的制度优势,以交叉圆为模型图,确定二者的适用界限,坚持最有利于未成年人的原则,以犯罪情节、罪名以及设置监督考察的必要性为考量标准来明确二者在实践中的适用界限及优先级关系。

How to accurately grasp the choice of application of conditional non-prosecution or discretionary non-prosecution for minors in different situations is not only controversial in academic circles,but also a difficult problem for the application of grass-roots procuratorial organs.The three major problems are still unclear in the concept of application conditions of conditional non-prosecution for minors,the overlap between conditional non-prosecution for minors and discretionary non-prosecution in the application scope,and the lack of clear standards for the application priority.In order to better play their respective institutional advantages,this paper takes the cross circle as the model to determine the application boundary of the two,adhere to the principle of the most beneficial to minors,and take the crime circumstances,charges and the necessity of setting up supervision and inspection as the consideration standard to clarify the application boundary and priority relationship of the two in practice.