酌定不起诉后的重新追诉:反思与规制  

Re-Prosecution after Discretionary Non-Prosecution:Reflections and Regulation

作　　者：赵常成 Zhao Changcheng

机构地区：[1]南京大学法学院

出　　处：《环球法律评论》2025年第2期104-119,共16页Global Law Review

摘　　要：我国目前对酌定不起诉后的重新追诉未加限制,其正当性有待反思。司法实践中,重新追诉存在“客观基础改变”“主观评价改变”“新情况出现”三种类型。由于重新追诉可能导致滥用追诉权力、转嫁责任、侵扰个人安宁等问题,我国不宜一概承认重新追诉的正当性。从比较法角度考察,酌定不起诉后的重新追诉往往处于法律原则约束的真空地带,法律规则的适用也存在明显局限,引入信赖保护原则是突破既有困境的适当解决方案。公民个人对酌定不起诉决定存在信赖基础与信赖利益,国家应切实约束重新追诉的权力。在信赖保护原则的基础上,我国应当确立酌定不起诉的存续力规则。以此为基础,在消除存续力的特定条件成就之前,应禁止撤销该决定并重新追诉。Based on their reasons, re-prosecutions can be divided into three categories: those based on “changes in the objective basis”, those based on “changes in subjective evaluation”, and those based on “emergence of new circumstances”. From a legitimacy perspective, firstly, if re-prosecution remains unrestricted, prosecutorial authorities may abuse their power by excessively pursuing crime suppression or being influenced by extralegal factors. Secondly, the procuratorate bears a duty of due diligence when reviewing prosecutions. Permitting re-prosecution merely due to changes in subjective evaluation essentially shifts the responsibility for inadequate prosecutorial review onto the non-prosecuted individual. Finally, after a non-prosecution decision is rendered, the non-prosecuted individual has reintegrated into society and resumed a normal life, and re-prosecution would disrupt the stability they have regained. Therefore, China should establish reasonable regulatory constraints on re-prosecution following discretionary non-prosecution. From a comparative law perspective, most jurisdictions regulate re-prosecution based on the principle of ne bis in idem or the prohibition of double jeopardy. However, these principles typically apply only after a final judgment or a formal indictment. Moreover, even where pretrial legal frameworks address re-prosecution, they often have significant limitations. Given these shortcomings, China must seek alternative solutions. The principle of legitimate expectation provides a theoretical basis for regulating re-prosecution after discretionary non-prosecution. It emphasizes that the state must respect individuals' reasonable expectations of governmental decisions. The non-prosecuted individual has a legitimate expectation of the discretionary non-prosecution decision made by the procuratorate, has expectation-based conduct, and possesses expectation interests that merit protection. Based on the principle of legitimate expectation, China should establish a rule of continuit

关 键 词：不起诉 重新追诉 信赖保护 一事不再理 

分 类 号：D925.2[政治法律—诉讼法学]