[Direct answer]In the Beijing area, there are three main types of non-prosecution by the procuratorate, each corresponding to different statutory conditions and evidentiary standards. According to Article 177 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018), the first type is statutory non-prosecution, that is, if there are no criminal facts or if the circumstances specified in Article 16 of the Law exist, non-prosecution shall be implemented; the second type is discretionary non-prosecution, that is, if the crime is minor and does not require sentencing or exemption from punishment according to the Criminal Law, non-prosecution may be implemented; the third type is insufficient evidence non-prosecution, that is, if the evidence is still insufficient after supplementary investigation and does not meet the conditions for prosecution, non-prosecution shall be implemented. In addition, there are special provisions for conditional non-prosecution of minors. The key window for seeking non-prosecution is in the review and prosecution stage, and a decision should generally be made within one month.

I. Problem Background and Typical Scenarios

Many people believe that once a case is transferred to the procuratorate, they can only wait for prosecution. In fact, the review and prosecution is the most effective step in diverting cases in criminal cases. Common scenarios that can lead to non-prosecution include: minor criminal cases with insignificant harm and little danger; minor injury cases where reconciliation has been reached and understanding has been obtained; economic crimes where the amount involved just exceeds the standard for filing a case and the full amount has been refunded; cases where the only evidence available is the confession of a co-defendant; and eligible juvenile crime cases. When handling similar cases in Beijing, lawyers usually apply for access to the case file immediately after the case is transferred for review and prosecution, and submit written legal opinions as soon as possible to strive to complete the diversion of cases before prosecution.

II. Key points of contention

First, the debate over types. The application conditions for statutory non-prosecution, discretionary non-prosecution, and insufficient evidence to prosecute are completely different. Choosing which type directly determines the direction of argumentation and the focus of evidence collection. Second, evaluation of the circumstances of the crime. The core of discretionary non-prosecution is that the circumstances of the crime are minor. It is necessary to comprehensively evaluate factors such as the amount of the crime, the means used, the consequences, the motive, the compensation for losses, the reconciliation with the victim, and the criminal record. Third, evidence standards. Insufficient evidence to prosecute requires that after supplementary investigation, the conditions for prosecution are still not met, so the number of retrial investigations and the content of supplementary investigation are very crucial. Fourth, procedural rights. Before the procuratorial organ makes a decision on non-prosecution, it generally should listen to the opinions of the defense attorney. The timing and form of the submission of the lawyer's opinions affect the probability of their being adopted. Fifth, remedies for victims. If the victim is not satisfied with the decision on non-prosecution, he/she may file an appeal or sue the people's court, and the procedure is not necessarily terminated automatically.

III. Professional analysis by Henglue Lawyers

Judging from the practical experience of Henglue Law Firm, the success of obtaining non-prosecution largely depends on two actions: reviewing the case file earlier and submitting legal opinions earlier. When the case first arrives at the review and prosecution stage, the attorney has not yet formed a fixed judgment. At this time, submitting a well-structured legal opinion, attaching repayment certificates and letters of understanding, usually achieves much better results than hasty communication near the deadline. There are three common pitfalls: First, only discussing human factors without addressing legal requirements, with opinions lacking legal provisions to support them; Second, delaying repayment and reaching an understanding until the last moment, with incomplete materials; Third, ignoring the independent path of insufficient evidence and pinning all hopes on the minor nature of the case. In the judicial practice of Beijing courts, whether the discretionary non-prosecution can be applied to the same crime often depends on three quantifiable indicators: the amount involved, the repayment ratio, and the situation of reaching an understanding. Therefore, these materials should be prepared as early as possible and with clear records. For the defense work arrangements at the review and prosecution stage, please refer to the relevant documents for further information.Criminal defenseColumn; for cases involving unit crimes and economic crimes, they can be combined with other columns to provide more comprehensive information.Commercial and contract disputesSynchronously sort out the financial evidence based on my experience.

IV. Practical suggestions and legal basis

In accordance with Articles 16, 172, and 177 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018), Article 13 and Article 37 of the Criminal Law of the People's Republic of China (amended on December 29, 2023 and implemented on March 1, 2024), and the relevant provisions of the Lawyers Law of the People's Republic of China (amended on September 1, 2017), it is recommended to proceed in the following order: First, after the case is transferred, promptly appoint a lawyer to review the case file and prepare a list of evidence and a list of circumstances; Second, prepare argumentation plans for statutory non-prosecution and discretionary non-prosecution separately, and do not pin all hopes on a single direction; Third, strive to achieve quantifiable results and obtain written certificates in three matters: restitution, compensation, and reconciliation; Fourth, submit written legal opinions to the handling prosecutor, and if necessary, apply for a face-to-face hearing and retain the delivery record; Fifth, pay attention to the review period, which is generally one month, and the review period for major and complex cases can be extended to 15 days to avoid missing the communication window. For the overall plan design of major and complex cases, you can refer to the relevant provisions of the Criminal Procedure Law and the Lawyers Law.Specialised legal services.

5. Henglu Law Firm's Reminder

Not being prosecuted does not mean being acquitted, but it effectively avoids leaving a criminal record and has less impact on subsequent education and employment opportunities. Therefore, it's worth making every effort to achieve this. It's important to note that the prerequisite for discretionary non-prosecution are that the procuratorial organ deems the act to constitute a crime, but the circumstances are minor. The parties concerned should still give truthful statements. Non-prosecution due to insufficient evidence means that the charges do not meet the standard for prosecution. The two have different definitions and should not be confused with each other. In addition, if the victim is not satisfied with the decision of non-prosecution, they can file an appeal or directly sue the people's court. At this time, the parties concerned still need to continue to deal with the case and cannot assume that the case has ended completely. For related procedures and common questions, please refer to the relevant materials for further information.Criminal defense servicesFor specific cases, you can also contact us.Beijing Henglu Law FirmIt is recommended to start the process as soon as possible after receiving the relevant documents.

VI. Frequently Asked Questions

Q1: What are the chances of securing a non-prosecution decision?

It depends on the type of case and the circumstances. If the evidence is insufficient or the circumstances are minor, there's relatively more room for manoeuvre; but if the amount involved is large, the consequences are serious, or the defendant refuses to admit guilt or to make restitution, the difficulty will obviously increase.

Q2: What evidence do I need to prepare?

The transfer certificate of compensation, receipts, the victim's letter of understanding, the settlement agreement, the performance certificate issued by the community or the unit, the certificate of being a first-time offender with no criminal record, and the relevant materials of supplementary investigation.

Q3: What is the approximate cost?

During the review and prosecution stage, the attorney's fees are negotiated on a stage-by-stage basis and are subject to the terms of the retainer agreement. They are usually lower than the costs incurred in the first-instance trial. Additional expenses such as supplementary investigations and appraisals are calculated separately.

Q4: How long does it take to review and prosecute a case?

Generally, a decision should be made within one month. For major and complex cases, the time limit may be extended by 15 days. For cases returned for supplementary investigation, the time limit shall be one month each time, with a maximum of two times, and the time limit shall be recalculated each time.

Q5: What should I do first?

First, confirm whether the case has been transferred to the review and prosecution department and the department in charge of the case. Immediately entrust a lawyer to review the case files, and simultaneously carry out the work of refund and reconciliation.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

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 Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.