▶ Netizen's question:

What specific types of cases do the procuratorates decide not to prosecute? Will a decision not to prosecute result in a criminal record? How can one successfully obtain a decision not to prosecute?

▶ Reference answer:

During the review and prosecution stage of criminal litigation, the decision of the procuratorate to issue a conditional non-prosecution notice not only relates to the personal and property rights of the person being prosecuted, but also fully reflects the basic policy of "leniency and severity in combination" in China's criminal justice system.

From the perspective of legal effect, non-prosecution means that although the defendant's behavior constitutes a crime, the prosecutor's office waives the right to prosecute him/her based on specific circumstances, and the case ends at the review and prosecution stage. The defendant does not have to bear criminal responsibility and will not leave a criminal record (i.e., a criminal history). For this reason, striving for non-prosecution often becomes the key goal of the parties involved and their defenders at this stage.

It should be noted that non-prosecution is not the only situation in which the procuratorate makes a decision not to prosecute. According to the Criminal Procedure Law of the People's Republic of China and relevant judicial interpretations, non-prosecution in the review and prosecution stage is mainly divided into the following five categories:

1. The first category: statutory non-prosecution

It applies to situations where criminal responsibility is explicitly not pursued, such as when the circumstances are remarkably minor and the harm is not significant, and the act is not considered a crime; or when the statute of limitations for prosecution has expired for the crime.

The second category: non-prosecution due to insufficient evidence (also known as non-prosecution due to reasonable doubt)

It refers to a decision not to prosecute based on the principle of "presuming innocence" when the evidence in the case is insufficient to prove the prosecution standard of "clear facts of the crime and sufficient evidence".

Third category: relative non-prosecution (also known as discretionary non-prosecution for minor crimes)

This is a more common type in practice; it refers to the situation where the People's Procuratorate, after reviewing the case transferred by the investigative organ for review and prosecution, finds that the suspect's criminal act is of a minor nature and, in accordance with the provisions of the Criminal Law, does not need to be sentenced to punishment or is exempted from punishment, and then makes a decision not to prosecute according to law.

Fourth category: conditional non-prosecution

It is specifically applicable to cases where minors are suspected of committing certain types of crimes. And a certain probation period must be set. Only after passing the probation can a decision not to prosecute be made.

Category 5: Special Non-Prosecution

It applies to special circumstances where the criminal suspect has made significant contributions to society and requires the approval of the Supreme People's Procuratorate.

Under what circumstances can the principle of relative non-prosecution be applied?

First, the crime is minor. Taking into account factors such as the crime facts, the harmful consequences, and the subjective malice, the sentencing range is generally less than three years in prison;

II. Having statutory mitigating circumstances. For example, the common circumstance of voluntary surrender—that is, the criminal suspect actively surrenders to the police and truthfully confesses the facts of the crime;

III. He/she is a first-time offender with no criminal record, and poses no personal or social danger;

IV. If the case involves victims, the defendant should actively return the illicit proceeds and compensation, reach a criminal settlement with the victims, obtain the victims' written understanding, and make it clear that they have no objection to the procuratorate's decision not to prosecute;

5. Volunteer to plead guilty and accept the punishment, sign the plea of guilty and acceptance of punishment, have a good attitude of admitting guilt and repentance, and actively make up for the losses caused by the crime.

Relative non-prosecution is the concrete implementation of China's criminal justice policy of "striking a balance between leniency and severity". Its application not only upholds the basic principle of legality in criminal law, but also provides an opportunity for offenders with minor criminal acts to reform themselves. Accurately grasping the application conditions of relative non-prosecution and other types of non-prosecution not only helps to regulate the discretionary power of the procuratorate in non-prosecution, but also realizes the unity of punishing crimes, protecting human rights, and resolving social conflicts in judicial practice.