[Direct answer]In the Beijing area, the core differences lie in "should" and "can", and whether the premise constitutes a crime. Absolute non-prosecution, also known as statutory non-prosecution, refers to the situation where the suspect has no criminal facts, or the circumstances are significantly minor and do not constitute a crime, the crime has exceeded the statute of limitations, or the punishment has been waived by amnesty, etc. In such cases, the procuratorial organ shall make a decision of non-prosecution; relative non-prosecution, also known as discretionary non-prosecution, refers to the situation where the act constitutes a crime but the circumstances are minor, and according to the provisions of the Criminal Law, no punishment is necessary or the punishment is waived. One emphasizes the lack of necessity for prosecution, and the other emphasizes the lack of necessity for punishment despite guilt.

1. Problem background and typical scenarios

After the case enters the review and prosecution stage, the parties often hear "you can strive for non-prosecution", but they don't know which category their situation belongs to: whether they don't meet the criteria for criminal charges and should be non-prosecuted, or whether they constitute a crime but the circumstances are minor and they can strive for non-prosecution. The concepts are different, and the defense strategies and evidence focuses are also different — the former needs to prove "not constituting a crime or not deserving prosecution", while the latter needs to strive for "minor circumstances and no need for sentencing".

II. Key points of contention

First, the scope of statutory circumstances under which prosecution is absolutely not permitted. Second, the determination of "minor criminal circumstances" in the context of relative non-prosecution. Third, the differences in legal consequences and remedies between the two. Fourth, the relationship between doubtful non-prosecution and the two aforementioned situations.

III. Professional analysis by Henglue Law Firm

The first level: Absolute non-prosecution is "mandatory". According to Article 177 Paragraph 1 of the Criminal Procedure Law of the People's Republic of China, if the criminal suspect has no criminal facts, or meets any of the circumstances specified in Article 16 of the law, the people's procuratorate shall make a decision of non-prosecution. The circumstances specified in Article 16 include: the crime is of minor significance and does not cause significant harm, so it is not considered a crime; the crime has exceeded the statute of limitations for prosecution; the criminal suspect has been pardoned and exempted from punishment by a special amnesty order; the crime subject to a private prosecution has not been prosecuted or the prosecution has been withdrawn; and the criminal suspect or defendant has died, etc. The second level: Relative non-prosecution is "optional". Paragraph 2 of the same article stipulates that for crimes of minor significance that do not require punishment or are exempt from punishment according to the Criminal Law, the people's procuratorate may make a decision of non-prosecution. Whether to prosecute or not, the procuratorial organ enjoys discretionary power, and factors such as admitting guilt and accepting punishment, returning illicit gains, obtaining a settlement, and being a first-time or occasional offender are all important considerations. The third level: Legal consequences and remedies. Absolute non-prosecution means that criminal responsibility should not be pursued from the outset. The non-prosecuted person who is detained shall be immediately released, and the victim may file an appeal or directly sue. Although relative non-prosecution does not pursue criminal responsibility, the act is still legally evaluated as a crime. The victim can also file an appeal according to law, and if the non-prosecuted person commits a crime within a certain period of time, it may affect the handling of the case. The fourth level: Distinction from doubtful non-prosecution. Doubtful non-prosecution, which lacks sufficient evidence and does not meet the conditions for prosecution, is aimed at the issue of evidentiary strength, which is different from the "no criminal facts" of absolute non-prosecution and the "impunity for guilt" of relative non-prosecution. The three types of non-prosecution address three different aspects of the issue: "whether to initiate a case for prosecution", "whether to impose punishment", and "whether the evidence is sufficient". When handling criminal cases in Beijing, the defense focus should be on the facts not being established, the circumstances being minor, or the evidence being insufficient, depending on the circumstances, in order to achieve effective results.

IV. Practical suggestions and legal basis

The first step is to determine whether the case involves no criminal facts, minor circumstances, or insufficient evidence, and then identify the direction of the defense. The second step is to collect evidence based on the statutory circumstances set forth in Article 16 for cases where absolute non-prosecution is advocated. The third step is to strive for relative non-prosecution, with a focus on implementing the principles of pleading guilty and accepting punishment, returning illicit gains and compensating victims, and obtaining the victim's forgiveness. The fourth step is to pay attention to the subsequent rights and remedies of the non-prosecuted individuals to avoid their rights and interests being damaged. The main legal basis: Articles 16, 175, and 177 of the Criminal Procedure Law of the People's Republic of China (amended and implemented in 2018) and relevant judicial interpretations. The specific application shall be subject to the currently effective provisions.

5. Henglue Law Firm's Reminder

There are three types of non-prosecution decisions: absolute non-prosecution is mandatory, provided that there is no criminal fact or the case should not be prosecuted according to law; relative non-prosecution is optional, provided that the defendant is guilty but the circumstances are minor; and doubtful non-prosecution addresses the issue of insufficient evidence. For cases involving non-prosecution and criminal defense, you can consult a lawyer for further assistance.Criminal defense and criminal case filingFor services that require an overall solution and involve the rights and interests of victims, they can be provided in conjunction with other services.Personal injury and medical disputesFor plates related to corporate operations, you can refer to the following for reference:Business and contract disputes in enterprisesFor any questions or difficult situations, please feel free to consult us.Special servicesTeam.

VI. Frequently Asked Questions

Q1: Which is better, absolute non-prosecution or relative non-prosecution?

For the parties involved, absolute non-prosecution is more thorough, meaning that there are no criminal facts or that prosecution should not be pursued according to the law; relative non-prosecution does not pursue criminal responsibility but the behavior is still evaluated as a crime, and the consequences of the two are different.

Q2: Under what circumstances will there definitely be no prosecution?

In the following legal circumstances, the public prosecution organ shall not initiate a public prosecution: there are no criminal facts, or the circumstances are significantly minor and the harm is not great enough to be considered a crime; the statute of limitations has passed; the suspect has been pardoned and exempted from punishment; there is no one to report the case in cases handled upon the victim's report; and the suspect has died.

Q3: Is not being prosecuted considered a form of guilt?

In legal evaluation, it still constitutes a crime, but the circumstances are minor and do not require sentencing, only that criminal responsibility will not be pursued; it is not an acquittal, and there is a fundamental difference in nature between it and an absolute non-prosecution.

Q4: What should I do if I disagree with the decision not to prosecute?

The victim may appeal to the procuratorate at the next higher level or directly file a lawsuit with the court; the person who has not been prosecuted may also appeal against the decision not to prosecute. The specific remedies should be determined based on the person's identity and the reasons for the appeal.

Q5: What is the relationship between "non-prosecution due to reasonable doubt" and the other two types of non-prosecution?

The "non-prosecution with doubts" refers to the case where there is insufficient evidence or the defendant does not meet the prosecution conditions; the "absolute non-prosecution" refers to the case where there is no criminal fact or no need to pursue criminal responsibility; and the "relative non-prosecution" refers to the case where the defendant is guilty but the circumstances are minor. The three types of non-prosecution have different levels of application.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Criminal defense legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on current laws and regulations and publicly available adjudication rules, and is provided for general reference only. It does not constitute formal legal advice for specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer promptly.