For a long time, due to the lack of legislation and the lack of specific judicial interpretations, the withdrawal of the public prosecution system has always been a weak link in my country's criminal procedure theory and practice circles, and it urgently needs comprehensive reform and improvement. This case is such a criminal case in which the defendant has long been carrying the name of the criminal suspect because of the prosecution’s withdrawal behavior when there is solid evidence to prove the defendant’s innocence.

1. The case

The criminal suspect Huang, who is the manager of a city (county-level city) industrial company (the company is an enterprise owned by the whole people), was filed for investigation by the Municipal People’s Procuratorate on March 22, 2005 for the crime of embezzling public funds, and was arrested by the city’s public security bureau on the same day. He was arrested on April 5 and released on bail pending trial on June 20. The case was concluded by the Municipal Procuratorate and Anti-Corruption Bureau, and was transferred to the Public Prosecution Division of the court for review and prosecution on June 2. After examination, the municipal inspection found that Huang, as a national employee, took advantage of his position as the manager of the Qinyang City Industrial Company to transfer the company’s 250,000 yuan loan to the Municipal Personnel Bureau for the contract rent of his personal management talent hotel. The circumstances were serious and constituted the crime of embezzlement of public funds, and a public prosecution was filed in the Municipal People's Court on July 4. The case was heard in court on August 10, 2005. The author served as Huang's first-instance defender and defended his innocence. The focus of this case is whether the talent hotel is leased by an industrial company or by a certain person. The lease term of Talent Hotel is 5 years, starting on June 1, 1997. Among them, from October 1998 to May 2001, it was run by someone from Huang, and from May 2001 to May 2002 by Huang and Yang in partnership. Therefore, the key to this case is that the talent hotel was established before October 1998. Is it leased by an industrial company or by someone Huang? If the Talent Hotel was initially operated by an industrial company, rather than by someone Huang, the accusation in the indictment would not be established and Huang would not constitute the crime of embezzlement of public funds. After reviewing the case files, investigating and collecting evidence, and meeting with the parties, the author believes that the talent hotel was operated by an industrial company in the first year and analyzed from the following aspects: First, from the perspective of the parties signing the lease For the Municipal Personnel Bureau and the Municipal Industrial Company. Second, from the perspective of the performance of the lease contract, the first year's lease fee and the first half of the year are paid with loans from the industrial company, and the second half is covered by the industrial company’s boiler funds and the personnel bureau’s consumption at the Talent Hotel. From this, it can be seen that the industrial company is fulfilling the obligation to pay the lease, not someone else. Third, from the testimony of relevant personnel, the testimony of the person in charge of the Personnel Bureau as the lessor, the relevant person in charge and related staff of the industrial company as the lessee, and the head of the economic and trade committee as the competent department of the industrial company can all be Prove that the talent hotel is leased and operated by an industrial company rather than by a certain person. The above three points can at least prove that the talent hotel was originally leased and operated by an industrial company in form. If you want to determine the actual leasing entity of the talent hotel, you need to start with its financial expenditure. Talent Hotel paid 20,000 yuan for the management fee of the industrial company to the Economic and Trade Commission, 9,540 yuan for the telephone bill of the industrial company to the post and telecommunications bureau, 122,000 yuan for the fund-raising funds of the industrial company to the fundraiser, and 22.08 million external debts for the industrial company Yuan, it can be seen that the finance of the Talent Hotel actually assumes the financial function of the industrial company. Therefore, the Talent Hotel is essentially leased and operated by the industrial company. In this case, the prosecutor's basis for determining that the talent hotel was leased and operated by a certain person Huang had two main reasons, one was the business license and tax registration, and the other was Huang's personal statement. Regarding business license and tax registration. Although the business license of the Talent Hotel shows that the economic nature is an individual industrial and commercial household, it cannot be assumed that Huang had intentionally misappropriated public funds, because Huang initially requested an independent legal person business with a lease contract between the Personnel Bureau and an industrial company The license is only temporarily handled as a personal temporary business license due to lack of conditions and incomplete procedures, and the tax registration is based on the business license. Therefore, the information displayed in the business license and tax registration cannot be regarded as a lease by a certain person. Basis of operation. Regarding Huang's confession of guilt during the investigation stage. Since Huang overturned his guilty confession in the investigation stage during the court trial, and his confession in court and other evidence can be mutually confirmed, therefore, its authenticity should be affirmed, and Huang's confession in court shall prevail, and accordingly Of course, Huang’s confession of guilt at the investigative stage cannot be the basis for determining his personal lease operation. After court investigations and court debates, the fact that the criminal suspect Huang is innocent is very clear. Just when the collegial panel was preparing to make an innocence decision against Huang, the Municipal People’s Procuratorate applied to the Municipal People’s Court to withdraw the prosecution. The court approved it, but "ruled "It was not served to Huang. The author has repeatedly asked the court to provide this "ruling", but failed. So far, a criminal case that was supposed to be not guilty has been withdrawn by the prosecutor’s office, and there is no follow-up. Huang still bears the crime of embezzling public funds and his rights have not been remedied. This abnormal state is caused by the established system of withdrawing public prosecution, but it is not required by the law that pursues fairness and justice, so the legality of withdrawing public prosecution arises.

2. Analysis of the legality of the withdrawal of the prosecution in this case

The legality of the withdrawal of public prosecution in this case can be analyzed from two aspects: first, whether it meets the current legal provisions; second, whether it meets the value goals pursued by the law.

(1) Analysis of the compatibility between the withdrawal of public prosecution in this case and the current law

To explore whether the procuratorate’s application for withdrawal of the prosecution and the court’s approval in this case for the defendant Huang’s absence of criminal facts complies with the current law, it is first necessary to understand the relevant provisions of my country’s current law on the withdrawal of public prosecution system.

Article 108 of China’s Criminal Procedure Law of 1979 stipulates: After the People’s Court examines the case in which the public prosecution is filed, it shall decide to open a trial if the criminal facts are clear and the evidence is sufficient; if the main facts are unclear and the evidence is insufficient, the People’s Procuratorate may return to the People’s Procuratorate for supplementary Investigation; For those who do not need to be sentenced, the People’s Procuratorate can be asked to withdraw the prosecution. Although the 1979 Criminal Law expressly provided for the withdrawal of public prosecution system, as the law enforcement responsibility system and the system of investigating wrong cases have not been implemented, the People's Procuratorate is not very motivated and proactive in withdrawing public prosecutions, and withdrawal is not common. Because this provision has caused the interference of the right of trial to the right of public prosecution, and it is also suspected of allowing the court to decide before the trial. In order to prevent the court’s trial from becoming a formality, the Criminal Procedure Law revised in 1996 (hereinafter referred to as the New Criminal Procedure Law) was cancelled. The Criminal Procedure Law of 1979 on the withdrawal of a lawsuit.

In practice, it is necessary for the procuratorial organs to withdraw the prosecution. In order to solve this problem, the "two highs" have added content not stipulated in the new criminal procedure law through judicial interpretation, and re-regulated the withdrawal of the prosecution system. Article 177 of the Supreme People’s Court’s Interpretation on Certain Issues concerning the Implementation of the Criminal Procedure Law of the People’s Republic of China (hereinafter referred to as the Interpretation of the Criminal Procedure Law) that came into effect on September 8, 1998 stipulates that: before the judgment is announced, the People’s Procuratorate If the prosecution is withdrawn, the people’s court shall review the reasons for the withdrawal of the prosecution by the people’s procuratorate and make a ruling on whether it is permitted. The Interpretation of the Criminal Procedure Law only allows the withdrawal of the public prosecution system to exist, and does not provide for its specific application. In order to regulate the prosecution withdrawal behavior of the procuratorate, on January 18, 1999, the Supreme People’s Procuratorate promulgated and implemented the "People's Procuratorate Criminal Procedure Rules" (hereinafter referred to as the "Criminal Procedure Rules"). Article 351 stipulates that: Before the People's Court pronounces a judgment... …If it is found that there are no criminal facts, the criminal facts were not the defendant’s, or the defendant should not be held criminally responsible, the prosecution may be withdrawn. Article 353 stipulates the procedures for the withdrawal of prosecutions by procuratorial organs: changes, additions, or withdrawals of prosecutions shall be reported to the chief prosecutor or the procuratorial committee for a decision, and submitted to the people’s court in writing before the people’s court announces its judgment; in the court hearing process If the prosecutor believes that it is necessary to change, add, or withdraw the prosecution, he should request an adjournment and make a written record... After the prosecution is withdrawn, no new facts or new evidence shall be available for the prosecution.

It can be seen that the new Criminal Procedure Law revised in 1996 has abolished the provisions on the withdrawal of the public prosecution system. The fundamental reason for the existence and development of this system lies in the two subsequent judicial interpretations made by the "two highs". The discussion of the legality of the system is transformed into a discussion of the legality of the "two highs" judicial interpretation.

Article 58 of the Chinese Constitution stipulates: The National People's Congress and the Standing Committee of the National People's Congress exercise the power of national legislation. It can be seen that the legislative power of our country belongs to the National People's Congress and its Standing Committee. So, where does the legislative power of the "two highs" (that is, the power of judicial interpretation) come from? The second item of the 1981 "Resolution of the Standing Committee of the National People's Congress on Strengthening the Work of Law Interpretation" stipulates that all issues related to the specific application of laws and decrees in the court's trial work shall be interpreted by the Supreme People's Court. The Supreme People’s Procuratorate shall interpret all issues pertaining to the specific application of laws and decrees in the procuratorial work of the procuratorate. Therefore, the judicial interpretation power of the "two highs" comes from the authorization of the legislature, and the scope of interpretation is limited to the specific application of the law. In other words, judicial interpretation is the process of concretizing laws and decrees, not the process of creating them. On the one hand, when the new Criminal Procedure Law in 1996 abolished the withdrawal of the public prosecution system, the "two highs" lacked the premise for judicial interpretation, and the subsequent interpretation behavior could only be legislative, not judicial interpretation. On the other hand, the withdrawal of the public prosecution system as a criminal litigation system not only involves the power allocation of the prosecutors’ prosecution function on behalf of the country, but also involves the protection of major rights and interests of criminal suspects and defendants. The provisions of Article 8 can only be stipulated in the form of legislation by the National People's Congress, and cannot be substituted for legislation by justice. Therefore, the "two highs" stipulate the withdrawal of the public prosecution system in the form of judicial interpretation, which exceeds the jurisdiction of judicial interpretation. It is a violation of judicial power over legislative power and is illegal.

In this case, the procuratorate withdrew the prosecution before the court pronounced its verdict because Huang did not have criminal facts. Although it was consistent with the Supreme People’s Court’s Interpretation of the Criminal Procedure Law and the Supreme People’s Procuratorate’s Criminal Procedure Rules, it was due to the judicial interpretation itself as a prerequisite. Illegal. According to syllogism, the conclusion must be illegal.

In summary, starting from the current law, it is illegal to apply the withdrawal of public prosecution system in this case.

(2) Analysis of the compatibility between the withdrawal of public prosecution in this case and the value goals pursued by the law

Fairness and justice is the highest value pursued by law, and it is also the basic value orientation of my country's socialist rule of law. The right to receive effective relief after being violated is due to fairness and justice, especially in the field of criminal law. As the subjects of violations are public security, prosecutors, courts and other state agencies, when a criminal suspect or defendant is wrongly When the lawful rights are investigated and infringed, the relief of their rights becomes more important. When it is found that the defendant does not have criminal facts, the criminal facts are not the defendant’s conduct, or the defendant should not be held criminally responsible, that is, not guilty, the procuratorate applies for withdrawal of the prosecution, and the court ruled for permission without review, which can compensate for the work of the prosecutors Mistakes can coordinate the differences of understanding between the prosecutors and the law. The case can be ended in the form of withdrawing the case, but it fails to give the defendant a conclusion. This result is a way of closing the case for the people’s court, and the price is right. The infringement of the defendant's legal rights. First, after trial by the people’s court, neither guilty nor innocence is declared, but the people’s procuratorate withdraws the prosecution, which puts the defendant in a very embarrassing situation: the state and society are uncertain about their evaluation, which makes Their inability to normally engage in economic activities, be employed, or hold public positions in the society, and be unable to live, study, or go abroad normally, will inevitably seriously damage the lawful rights and interests of the parties who have been wronged, and even affect their descendants. Second, according to China’s National Compensation Law, the defendant can only be compensated if the case is confirmed innocent by the case-handling unit. If the case is indeed wrong, the procuratorial agency uses the right of withdrawal to withdraw the lawsuit, no matter how long the defendant is detained Time and how much reputation has been damaged will be in a state of uncertainty as to whether the defendant’s behavior constitutes a crime, leaving the defendant in an extremely passive situation where he cannot claim compensation and cannot restore his reputation. In this case, the procuratorate applied to the court to withdraw the lawsuit because Huang had no criminal facts. On the surface, it was aimed at protecting the defendant from being wrongfully investigated. In fact, it used withdrawal as a litigation technique to replace the innocence verdict with the withdrawal of the lawsuit. Purpose, the result is that Huang has been on bail pending trial after the withdrawal of the lawsuit. It is difficult to get rid of the criminal suspect of embezzlement of public funds, and the infringed rights cannot be remedied, which damages Huang's legal rights and infringes Huang's human rights. At the same time, It also seriously deviates from the value goal of fairness and justice pursued by the law, and will ultimately be detrimental to the realization of China's socialist rule of law. Therefore, from the perspective of the value goal pursued by the law, it is also illegal to apply the withdrawal system in this case.

To sum up, whether it is based on the current legal provisions or the value goals pursued by the law, the application of the withdrawal of public prosecution system in this case is illegal. The fundamental reason for the illegality is not the judicial system, but the systemic flaws in the system. This legislative issue. Due to the practical necessity of existence, this system with many defects should not be abolished extremely, but should be actively regulated and improved.

3. Defects and improvement of my country's withdrawal of public prosecution system

Combining this case and proceeding from the current legal provisions, China’s withdrawal of public prosecution system mainly has the following problems: First, in the absence of provisions in the legislation of the People’s Congress, the "two highs" stipulate that they directly produce the effect of distributing public power in the form of judicial interpretations. The withdrawal of the public prosecution system is an arrogance of the judicial power over the legislative power; second, the law stipulates that the procuratorial organ can withdraw the prosecution at any time before the court announces the judgment, avoiding the interference of the judicial power on the public prosecution, but it may cause the public prosecution right Intervention of judicial power; third, the law stipulates the procedure for withdrawal of the suit, but does not involve the effect of withdrawal and the handling after withdrawal.

The first problem in my country's withdrawal of the public prosecution system involves the level of conflict in the application of law. Regarding the level of conflict in the application of law, according to the legal hierarchy, the National People’s Congress legislation should be applied first, that is, the new Criminal Procedure Law should be applied first. Then, the withdrawal of the public prosecution system loses the basis for its existence. In practice, the withdrawal of the public prosecution system not only exists, but also applies It is quite extensive, and the most fundamental reason lies in its practical necessity for existence. This necessity is reflected in both theory and practice. First of all, about the necessity of theory. Scholars believe that withdrawing a lawsuit is a common practice in the procedural laws of various countries. On the one hand, it can fairly realize the national penal power and satisfy the procedural legitimacy, and has procedural legal value. On the other hand, it is also an objective need to adapt to the prosecution system and improve the quality of public prosecution. Some scholars also proceeded from the theoretical basis of withdrawing the public prosecution system and deeply analyzed the necessity of the existence of the system. They believed that the withdrawal of criminal public prosecution cases is an objective requirement for the fairness of the right of public prosecution, the inevitable result of the pursuit of objective truth in criminal legislation, and the principle of prosecution. The due meaning is an inevitable requirement for the status of the legal supervisor of the procuratorial organs in our country, conforms to the principle of litigation economy, can save judicial resources and improve the efficiency of litigation. Secondly, regarding the necessity of practice. According to the investigation report of the Guangzhou City Procuratorate’s system, at present, the main reasons that caused the procuratorate to withdraw the lawsuit are mainly manifested in evidence issues, legal application issues, and differences in understanding of the constitution of crimes. In judicial practice, the initiation of withdrawal procedures can be summarized in the following situations: significant changes in the evidence situation in court trials; original lack of evidence, inability to form evidence chains, and flaws in the evidence system; due to various factors such as pressure from public opinion and parties The prosecution is reluctant; the two prosecutors and the courts have deviations in the understanding of the constitution of the crime or the determination of the crime; there are major differences in the acceptance of evidence; after the prosecution, the facts of the crime and the crime of the omission are found to be unclear, the evidence is insufficient, and additional investigation is required And it has not been returned to the investigation or returned to the investigation for less than two times, and the lawsuit is withdrawn for additional criminal facts; omissions are discovered and may involve more serious crimes; initiated due to the conversion of the original applicable litigation procedures, such as jurisdiction; because the defendant is filing Escaped or died after prosecution. It can be seen that the withdrawal of the public prosecution system is indeed necessary and needs to be confirmed by the Criminal Procedure Law in order to eliminate the hierarchical conflicts in the application of the law in current judicial practice and achieve the harmonization of legal provisions.

Regarding the second problem with the withdrawal of the public prosecution system. The application of the prosecution withdrawal system in China is based on the condition that the defendant is not guilty. According to the current law, as long as the defendant is found to be innocent before the judgment is announced, the procuratorate can apply to the court to withdraw the prosecution. After the court has opened the case and before the judgment is announced, even if the court has rendered an innocence verdict, as long as the defendant has not been declared, the procuratorate can still apply to the court to withdraw the lawsuit. At this time, the defendant’s innocence conclusion has been formed, but no public announcement has been made. If the procuratorial organ is still given the right to withdraw the lawsuit at this time, the procuratorial organ will be fulfilled to the greatest extent and at the same time the lawful rights and interests of the defendant will be violated to the greatest extent. It can be seen from this that the current law is too lenient regarding the period during which the procuratorate can apply for withdrawal of a lawsuit and needs to be narrowed and restricted. Then, when is it reasonable for the procuratorate to apply for withdrawal? The author believes that the procuratorate’s right to withdraw a lawsuit should expire before the court has established that the defendant is innocent. We know that the facts of the case that the judge knows about the case before the trial is only to a certain extent, and the evidence in the case file may also be tortured and untrue. Once the court is opened, after court investigations and court debates, the judges will be aware of the facts of the case. There is a more comprehensive understanding, and a more objective understanding of the authenticity, relevance, and legality of the evidence. A preliminary understanding of whether the defendant is guilty has been formed. After the collegiate panel's review, the conclusion that the offender is not guilty has finally been formed. Then is the process of writing and making this conclusion public, that is, making a judgment and announcing the judgment to the defendant. In other words, after the conclusion of the court debate, the court already knew the defendant’s innocence, and the collegiate panel's deliberations unified this understanding into a conclusion. Therefore, the author believes that defining the time for the procuratorate’s application to withdraw the case before the end of the court debate can be better. In order to effectively protect the lawful rights and interests of the defendant, it is helpful to avoid the interference of the power of public prosecution to the judicial power, and it is also helpful to supervise the prosecutors to actively exercise the power of public prosecution and continuously improve the quality of public prosecution. When the court has formed the knowledge that the defendant is not guilty, it should make a verdict of innocence based on the facts, return the defendant a clean, and give the defendant a chance to protect his legal rights and interests, instead of doing everything possible to preserve the face of the procuratorial organ To seek withdrawal of the lawsuit.

Let's look at the third question. The procedure for withdrawing a lawsuit is stipulated in Article 353 of the Criminal Procedure Rules of the Supreme People’s Procuratorate and Article 177 of the Interpretation of the Criminal Procedure Law. These provisions provide the basis for the procuratorial organ to withdraw the lawsuit, but they have an impact on the effectiveness of the withdrawal of the lawsuit and the impact on the case after the withdrawal. The treatment is not involved, making it a "vacuum" of legal regulation. The effect of withdrawal determines the handling method after withdrawal. Different effects will lead to different handling methods adopted by procuratorial organs in judicial practice. In this case and judicial practice, the main reason why China's withdrawal of prosecution system is controversial is here. The author elaborates.

4. The effect of withdrawing the public prosecution and its subsequent handling

The current legal provisions do not clearly withdraw the effect of the public prosecution system, leading to the abuse of criminal withdrawal power in judicial practice: some cases were returned to supplementary investigation, some were decided not to prosecute on the grounds of minor crimes, and some were changed at will. The case entered a new round of litigation procedures. Some were changed their charges and prosecuted again, some were returned to the public security organs for supplementary investigation, and some were hung up high without comment; after the withdrawal of the case, some of the defendants were kept in custody, and some were changed. The compulsory measures are release on bail pending trial or residential surveillance. Therefore, in order to change the status quo of abuse of judicial power in judicial practice, it is first necessary to clearly define the effect of withdrawing public prosecution.

(1) Effect of withdrawal of public prosecution

At present, there are two main views on the effectiveness of withdrawing public prosecutions: the first view is that the withdrawal of the prosecution means the suspension of the criminal case; the second view is that the withdrawal of the prosecution means the end of the criminal case. In judicial practice, public security and procuratorial organs took a circuitous route to re-prosecute some cases. In fact, the withdrawal of the prosecution can only achieve the effect of suspending the trial. Another part of the case was shelved after the withdrawal of the case, resulting in the actual termination of the trial, such as this case. However, the current legal provisions are not clear on whether the effect of withdrawing a public prosecution is to suspend or terminate the criminal trial.

The suspension of the trial of a criminal case means that the trial agency decides to stop the proceedings before or during the trial, due to a special situation that has caused the case to be unable to be heard for a long time, and resume the trial after the cause disappears. , The litigation activities carried out before the suspension are still valid. Regarding the applicable conditions for the suspension of the trial, Article 181 of the Supreme Court’s Interpretation of the Criminal Procedure Law stipulates that during the trial, the private prosecutor or the defendant suffered from mental illness or other serious illness, and the defendant escaped after the case was prosecuted to the people’s court, causing the case If the trial cannot be continued within a relatively long period of time, the people’s court shall rule to suspend the trial; if the case cannot be continued due to other irresistible reasons, it may rule to suspend the trial. Therefore, the suspension of criminal proceedings is based on the occurrence of statutory reasons, which causes the case to be temporarily unable to proceed. The termination of the criminal procedure is based on the occurrence of statutory reasons, which makes it impossible or unnecessary to pursue the criminal responsibility of the defendant, thus making the criminal trial unnecessary when it is necessary to proceed.

According to the Supreme People’s Procuratorate’s "Criminal Prosecution Rules", the withdrawal of the case is based on three types of circumstances: first, no criminal facts exist; second, the criminal facts were not committed by the defendant; and third, the defendant should not be held criminally responsible. In the first and second cases, the defendant is actually innocent (or essentially innocent) and cannot be held criminally liable; in the third case, or the defendant is actually guilty , It is only because the circumstances of the crime are obviously minor that it is not necessary to pursue criminal responsibility (hereinafter referred to as “minor crimes”), or there is insufficient evidence to prove the defendant’s criminal facts, and he cannot be investigated for criminal responsibility (hereinafter referred to as insufficient evidence Be held criminally responsible). Therefore, in general, the withdrawal of the prosecution should have the effect of the termination of the criminal trial. However, according to Article 353, paragraph 4 of the Criminal Prosecution Rules, the effect of withdrawal of the case without criminal responsibility for insufficient evidence is different. The suspension of a criminal trial is also different from the termination of a criminal trial. It is a special suspension that requires the coercive measures taken against the defendant to be stopped.

The suspension of the criminal trial is only a temporary suspension of the criminal trial, and the trial will continue after the relevant circumstances disappear. In judicial practice, during the suspension of the trial, the detained or arrested defendant whose detention period expires can be changed to release on bail pending trial or residential surveillance, that is, the compulsory measures cannot be lifted during this period. This is the key to the author's definition of the effect of withdrawal due to insufficient evidence as a special suspension. According to the previous introduction, in general, the suspension of criminal trials is caused by reasons that cannot be attributed to the judicial organs, and the suspension of the criminal trial caused by the withdrawal of the lawsuit due to insufficient evidence is not due to the defendant, but Because the work of the judiciary is not in place, therefore, if the suspension of a criminal trial under normal circumstances is caused by the suspect or the defendant’s own reasons, he needs to bear the resulting adverse consequences (that is, the termination period cannot be cancelled In the case of compulsory measures), then the defendant should not bear the adverse consequences of the suspension period for the suspension of the criminal trial caused by the judicial organ, because once the criminal trial is suspended, the restart time is not clear, and the criminal trial is different from both parties. In civil trials with equal status, the procuratorate, as the representative of the country, is absolutely strong. It cannot withdraw the case due to insufficient evidence and the suspension of the trial can leave the case in an uncertain state of prosecution for a long time, nor can the defendant be prosecuted because of this uncertainty. Always bear the infringement of rights caused by the work mistakes of the public security procuratorial organs. In order to reflect the special protection of vulnerable defendants and truly implement the principle of equality before the law, the defendant should be found innocent by the procuratorial agency due to insufficient evidence At that time, the infringement of the defendant’s rights should be terminated instead of continuing the detention of the defendant, shelving the case thereafter, or taking other measures that harm the lawful rights and interests of the defendant. Therefore, withdrawal of the lawsuit due to insufficient evidence should be terminated before the defendant’s compulsory measures The effect of suspension of criminal proceedings is produced on the basis of this.

In summary, the author believes that the withdrawal of a lawsuit based on substantive innocence or not being held criminally responsible has the effect of terminating the criminal trial; the effect of withdrawing a lawsuit based on insufficient evidence is a special kind of special due to the need to terminate the compulsory measures against the defendant. The suspension.

After the validity is determined, there will be a basis for the handling of the case after the withdrawal of the prosecution.

(2) Handling after withdrawal

According to the author's analysis above, the withdrawal of prosecution can be divided into two categories: one is the withdrawal caused by substantive innocence and not being held criminally responsible, and the other is the withdrawal caused by insufficient evidence. The former has the effect of termination, and the latter has a special suspension. When a criminal case is withdrawn from public prosecution because the defendant is essentially innocent and should not be held criminally responsible, or the circumstances of the crime are significantly minor and do not need to be held criminally responsible, the criminal trial is terminated and the criminal proceedings are terminated to ensure the normal progress of criminal proceedings The criminal compulsory measures are also terminated. Therefore, the case can no longer be returned to the procuratorate for supplementary investigation, the prosecutor’s office can no longer make a decision not to prosecute on the grounds of minor crimes, nor can it be returned to the public security agency for supplementary investigation, nor can it be arbitrarily changed jurisdiction to re-enter the case A new round of litigation procedures, or a new prosecution if the crime is changed, and the case is hung up inconsistently, and the most harmful to the legitimate rights and interests of the defendant is the most undesirable method. Correspondingly, the compulsory measures taken against the defendant should also be lifted, and neither should the detention be continued, nor should the compulsory measures be changed to release on guarantee pending trial or residential surveillance. These are the inevitable manifestations of the effectiveness of the termination of the trial based on substantive innocence and minor criminal responsibility. However, in order to make the handling after the withdrawal of the case more clear, while clarifying the effectiveness of the procuratorate's withdrawal of the case, the specific handling after the withdrawal of the case should also be clarified. Method, that is, the court should make a written decision to withdraw the lawsuit after review, and deliver it to the procuratorial organ, public security organ, the defendant, the victim and their relatives, one of which is; the other is to relieve the defendant from the public security and procuratorial organ’s mistakes. It should be stipulated that the ruling is the same as the court’s innocence verdict and has the effect of applying for state compensation. Third, the defendant shall be released immediately and unconditionally after the ruling to approve the withdrawal of the lawsuit is made.

When the criminal case has insufficient evidence to prove the defendant’s innocence, the special suspension effect produced by the prosecutor’s office withdrawing the prosecution is different from the general suspension effect in that the coercive measures of the defendant need to be lifted immediately. Therefore, the case is withdrawn due to doubtful innocence After that, the most important thing is to release the defendant immediately, but it does not mean that the defendant has obtained full freedom. After all, the defendant has not fundamentally eliminated the suspicion of the crime. Therefore, the public security procuratorial organ can still take certain measures against the defendant. Take control, such as restricting the defendant’s exit. In addition, the handling after withdrawal of a suspected innocence is the same as that after a general suspension. The court also needs to make a written decision on withdrawal and serve it to the parties, and it can do it again when new facts are discovered or new evidence is collected. Prosecute.

Four, conclusion

If the problems of the withdrawal of the public prosecution system are clarified, and the problems mentioned in this article are resolved in a standardized and perfect way, this case will not become a case that has not yet been concluded. The lawful rights and interests of the defendant Huang in this case are also After the case is over, they will not be infringed for a long time. Even if their rights are infringed, they can get the final judicial relief and the due state compensation.