检察机关撤回公诉的功能异化与矫正路径  

Functional Alienation and Correction Paths for Withdrawing Public Prosecution of Prosecuting Authorities

作　　者：朱贤齐 

机构地区：[1]华东政法大学刑事法学院,上海

出　　处：《争议解决》2023年第6期2821-2829,共9页Dispute Settlement

摘　　要：刑事撤诉属于诉的变更范畴,是立法者为了提高司法效率和保证司法公正而设定的特别程序环节。毋庸置疑,刑事撤诉程序有其存在的法理基础,赋予检察院于诉讼中撤诉的权力也是刑诉法的应有之义。但是由于立法的缺失,仅存对于检察院刑事撤诉权的规定在两高的司法解释中,检察院刑事撤诉权的正当权源因此受到质疑。同时,撤回公诉与少捕慎诉慎押刑事司法政策联系紧密,唯有填补这一漏洞方能倒逼少捕慎押之实现。检察院在何种情况下可以撤诉,撤诉后的程序衔接问题,需要从立法和制度层面进行完善。本文从刑事撤诉存在的法理正当性入手,首先阐述刑事公诉的概念和界定,将刑事撤回公诉的范围限定,探究制度存在的法理基础和价值理念。其次从刑事撤回公诉的现行法律规定入手,寻找制度立法上和司法上现存的问题,再深挖造成问题的原因。为了衔接检察机关撤回公诉和少捕慎压刑事政策,探究两者的平衡点,完善相应的制度。Criminal withdrawal of prosecution belongs to the scope of change of prosecution, which is a special procedure set up by legislators to improve judicial efficiency and ensure judicial fairness. There is no doubt that the criminal withdrawal procedure has its legal basis, and giving the procuratorate the power to withdraw the case during litigation is also the proper meaning of the Criminal Procedure Law. However, due to the lack of legislation, only the provisions on the procuratorate’s right to withdraw criminal prosecution have been questioned in the judicial interpretations of the Supreme People’s Court and the Supreme People’s Court. This is not only a challenge to the unity of the national legal system, but also seriously violates the legitimate personal rights of defendants and criminal suspects. At the same time, the withdrawal of public prosecution is closely related to the criminal justice policy of less arrest and prudent prosecution and prudent detention, and only by filling this loophole can the closure of less arrest and prudent detention be realized. Under what circumstances the procuratorate can withdraw the lawsuit, and the issue of the connection of procedures after the withdrawal of the lawsuit have become a hot topic of discussion in academic and practical circles. Starting from the legal legitimacy of the existence of criminal withdrawal of prosecution, this paper first expounds the concept and definition of criminal public prosecution, limits the scope of criminal withdrawal of public prosecution, and explores the legal basis and value concept of the existence of the system. Secondly, starting from the existing legal provisions on the withdrawal of criminal prosecution, we will look for existing problems in system, legislation and justice, and then dig deeper into the causes of the problems. In order to bridge the gap between the procuratorial organs’ policy of withdrawing public prosecutions and reducing arrests and cautiously suppressing criminal cases, explore the balance between t

关 键 词：撤回公诉 少捕慎诉 监督制约 

分 类 号：D92[政治法律—法学]