Keywords: criminal reconciliation, prosecution and mediation, docking and reconciliation of prosecutors
The so-called criminal reconciliation system refers to a criminal justice system in which criminals and victims can directly talk and negotiate to solve disputes or conflicts with the help of mediators after committing crimes. Its purpose is to repair the original harmonious relationship between the criminal and the victim destroyed by criminal acts, so that the criminal can turn over a new leaf and return to society.
Criminal reconciliation embodies the specific requirements of restoring justice to the greatest extent, that is, the value of justice and efficiency. The balance between justice and efficiency is the value basis of the institutionalization of criminal reconciliation. Criminal reconciliation has been widely recognized, and there are more and more researches on the design of criminal reconciliation system. Studies all believe that the scope of criminal reconciliation cases is minor criminal cases. However, there are still different views on the design of criminal reconciliation system. The main points are as follows: The first point of view is that criminal reconciliation can be applied to all stages of litigation, such as investigation, prosecution, trial, etc., and the reconciliation procedure is presided over by public security organs and other organs accordingly, and the corresponding criminal responsibilities include: the public security organs withdraw the case, the procuratorial organs do not approve the arrest, suggest the public security organs to withdraw the case, do not prosecute or suggest a lighter, mitigated or exempted punishment, the court suggests the procuratorial organs to withdraw the prosecution, do not prosecute, and the court makes a decision to exempt punishment. The second view is that criminal reconciliation is mainly applicable to the stage of examination and prosecution, the intention of reconciliation is promoted by the procuratorial organ, the reconciliation procedure is presided over by the people's mediation Committee, and the corresponding criminal responsibility is not to prosecute. The third view holds that criminal reconciliation can be applied to all stages of litigation such as investigation, prosecution and trial. The conciliation procedure is presided over by the People's Mediation Committee, and the criminal responsibility is correspondingly handled by the public security organs and other organs (the same as the first view).
Although criminal reconciliation can be applied in all stages of litigation in the process of handling a case, there are various ways to apply the result of reconciliation. Cases can be dismissed in public security organs, handled without prosecution in procuratorial organs and exempted from punishment in courts. Different disposal methods, although they all reflect the leniency policy, are still different. The most important point is that it is unfair that cases of the same nature are treated differently.
According to the author's practice in judicial organs for many years, it is very rare for public security organs to voluntarily withdraw their charges after filing a case for criminal reconciliation. However, after examination, the procuratorial organs found that many cases were suggested to be withdrawn by the public security organs because the contradictions between the two sides had been repaired, but this situation also appeared because the procuratorial organs artificially controlled the index of non-prosecution. Without this indicator, the procuratorial organ can simply decide not to prosecute and close the case. In addition, it is basically impossible to suggest that the procuratorate withdraw the prosecution and then not prosecute because the case is closed at the trial stage. First of all, from the perspective of higher court review, the procuratorial organ will not accept this withdrawal at all; Secondly, there is no need for the court to ask the procuratorial organ to withdraw it, and it can make a judgment exempt from criminal punishment.
Therefore, it has its special position and function to implement criminal reconciliation in the stage of examination and prosecution by procuratorial organs. The author believes that the above second viewpoint has its positive significance. Docking between prosecution and mediation (short for criminal reconciliation in the stage of examination and prosecution by procuratorial organs) can be said to be the best way for criminal reconciliation.
First of all, the application of judicial results can be unified. In order to carry out the criminal justice policy of combining leniency with severity, prosecutors can make non-prosecution treatment according to the situation in cases connected with prosecutors (including cases confirmed by prosecutors after mediation by public security organs), which can unify the application of judicial results, avoid the phenomenon that similar cases are treated differently due to different stages of criminal reconciliation, and fully reflect the fairness of law enforcement. In order to repair social contradictions to the maximum extent, after accepting a case, the procuratorial organ should clearly inform the victim and the victim about the nature, process and application of the results of the docking of prosecution and mediation, so that both parties can understand the significance of the docking of prosecution and mediation and promote the achievement of reconciliation intentions.
Secondly, the will of both sides can be fully exerted. Reconciliation in the stage of examination and prosecution will bring less judicial pressure to the injured party and give full play to the will of the injured party. The stage of examination and prosecution is not the final procedure of the case. In the process of reconciliation, the injured party can ask the case to enter the trial procedure without reconciliation, or take the initiative to ask for reconciliation, strive for non-prosecution and return to society as soon as possible. The interests of the injured party can be put forward in the procuratorial organ in the most reasonable way. Mediation can protect the interests of both the injured party and the injured party within the scope of law. If the victim's interests are basically satisfied and he can understand the victim, it is enough to show that their relationship has been repaired, and the procuratorial organ can not prosecute the victim and the victim can understand. In the stage of court mediation, the judicial pressure of the injuring party is relatively great, because if it is unwilling, it will not be dealt with lightly, or even be sentenced to actual punishment. Because of this, the offender will make mediation against his own will, which actually does not meet the basic purpose of criminal reconciliation. Criminal reconciliation should be the truest realization of the will of the victim and the injured party. Only when the will is true can their original harmonious relationship be truly restored.
Third, the supervisory function of procuratorial organs can be fully realized. Criminal reconciliation also needs supervision. For cases mediated by public security organs, procuratorial organs can supervise in the process of contacting the perpetrators and victims and understanding the mediation situation by consulting the case files. In the criminal reconciliation review and prosecution, the two sides first negotiate through the mediation of the procuratorate. After the will is basically reached, the procuratorial organ will refer the case to the People's Mediation Committee for mediation, and the procuratorial organ will intervene in the mediation process to exercise supervision. In the criminal reconciliation at the trial stage, the procuratorial organs can't supervise at all. Therefore, if the case is reconciled in the stage of examination and prosecution, the supervision function of the procuratorial organ can be fully realized.
Criminal reconciliation of procuratorial organs can be carried out in the following aspects.
First, establish specialized grass-roots procuratorial organs.
In the past practice, there are many modes of criminal reconciliation, and some procuratorial organs are carried out by public prosecution departments; Some procuratorial organs are appealed by procuratorial departments. Although these models are feasible in the exploration stage, with the increasing number of criminal reconciliation cases and the gradual expansion of reconciliation workload, this model can no longer meet the development requirements of the new situation. Moreover, from the point of view of regulating the operation of criminal reconciliation, it is inevitable to establish a special institution to specialize in criminal reconciliation. All the procedures of the reconciliation center, such as accepting cases, examining and handling cases, promoting understanding between defendants and victims, public hearings required for criminal reconciliation and closing cases, and follow-up visits, are carried out by the center.
Second, establish a reconciliation prosecutor system.
Separate the prosecutor who handles the case from the prosecutor who conducts criminal reconciliation, and the special reconciliation prosecutor is responsible for formulating a special reconciliation plan to promote the understanding process between the injuring party and the injured party, and consider the personal usual behavior of the injuring party. Reconciliation prosecutors and prosecutors perform their respective duties, which is not only conducive to mutual supervision and restriction, but also conducive to reducing the interference of various subjective factors and ensuring the quality of criminal reconciliation.
Third, the initiation of criminal reconciliation procedure.