【作者】 何佳；

【导师】 左卫民；

【作者基本信息】 四川大学 ， 诉讼法学， 2021， 硕士

【摘要】 正确、充分适用不起诉裁量权已经成为新时期检察工作科学发展的需要,这既有益于检察机关发挥审前程序功能合理分流案件,优化司法资源配置,让有限的司法力量从长期的讼累中解放出来,又有利于传递司法的温情,教育挽救犯罪嫌疑人,实现预防犯罪的目的,同时这也为醉驾入刑带来的问题提供了解决思路。醉驾自入刑后,受“一律入刑”的思想影响,案件数量呈持续增长态势,现已成为刑事追诉排名第一的犯罪行为。每年因醉驾被追究刑事责任的人数十万计,并随附一系列不利后果,行为人往往为此付出沉重代价。按目前醉驾发案的趋势,醉驾犯罪人数将逐年增多,长此以往,社会治理负担将会越来越重,这对个人生存和社会发展都是巨大的伤害。入刑的负面效应已逐渐显现,过度依赖严厉刑罚苛责醉驾者已不符合治理的实际需要。伴随这日益突出的治理难题,社会上关于为醉驾定罪“松绑”、量刑“放宽”的呼声高涨。最高院率先作出回应,表明其“醉驾不一律入刑”的倾向,通过《量刑指导意见(二)》为各地醉驾出罪免刑提供了指导依据,各地据此也纷纷制定相关文件,明确了醉驾不起诉的标准。鉴于各地实践情况不一,起诉与否的尺度也不尽相同,导致醉驾不起诉标准在各地区存在较大差异。并且在不予起诉后,缺乏对应的教育惩治措施,使得不起诉并未发挥其应有的效果。同时,在传统司法理念、繁杂审批流程等因素影响下,检察官在行使不起诉裁量权时还存在“不敢”、“不愿”适用的倾向。对此,为充分激活检察官不起诉裁量权的效能,减少醉驾入刑带来的消极影响,可以从源头出发,根除陈旧理念,强化检察官“敢于”、“善于”适用不起诉裁量权的意识;其次,将部分案件权力下放,让检察官对不起诉拥有充分的自由裁量权。同时增强拟不起诉案件办理的透明度,让公众适时参与;再次,通过将附条件不起诉引入醉驾案件办理过程,拓宽检察官裁量权的行使空间;最后,完善不起诉后的“刑行衔接”,并匹配合适的非刑罚处置措施,通过跟踪回访不起诉案件,监督落实帮教效果;另外,为让轻微醉驾行为人更好地回归社会,配套建立醉驾犯罪档案封存制度,让他们拥有真正重新开始的机会。更多还原

【Abstract】 The correct and full application of the discretion of non-prosecution has become the need of the scientific development of prosecutorial work in the new period,which is not only beneficial to the office of the public prosecutor to give full play to the function of pre-trial procedure to reasonably divert cases,optimize the allocation of judicial resources,liberate the limited judicial power from the long-term litigation burden,but also help to convey judicial warmth,educate and save criminal suspects,and achieve the purpose of crime prevention.At the same time,it also provides a solution to the problems brought about by drunk driving into punishment.Since drunk driving into prison,under the influence of the thought of "all drunk driving into punishment",the number of cases has continued to grow,and has now become the number one criminal behavior in criminal prosecution.Hundreds of thousands of people are investigated for criminal responsibility for drunk driving each year,accompanied by a series of adverse consequences,for which the perpetrators often pay a heavy price.According to the current trend of drunk driving cases,the number of drunk driving crimes will increase year by year.In the long run,the burden of social governance will be more and more heavy,which is a great harm to individual survival and social development.The negative effect of entering the penalty has gradually appeared,and the excessive reliance on the severe punishment to blame the drunken driver has not met the actual needs of governance.With this increasingly prominent governance problem,the voice of "loosening" and "relaxing" sentencing for drunk driving convictions is high in society.The Supreme Court took the lead in responding,indicating its tendency of "drunk driving is not always punished".Through the Sentencing Guidance(2),it provides a guiding basis for the exemption of drunk driving from crime,according to which the relevant documents have been formulated one after another,and the standard of drunk driving without prosecution has been clarified.In view of the different practice in different places,the scale of prosecution is not the same,which leads to great differences in the standards of drunk driving and non-prosecution in different regions.And after not prosecuting,the lack of corresponding educational punishment measures,so that the non-prosecution has not played its due effect.At the same time,under the influence of traditional judicial concept,complicated examination and approval process and other factors,prosecutors still do not dare and do not want to apply when exercising their discretion of nonprosecution.In this regard,in order to fully activate the effectiveness of prosecutors’ non-prosecution discretion and reduce the negative impact of drunk driving into punishment,we can start from the source,eradicate old ideas,and strengthen the awareness that prosecutors dare and are good at applying the discretion of nonprosecution;secondly,devolve the power of some cases so that prosecutors have full discretion over non-prosecution.At the same time,we should enhance the transparency of the handling of cases without prosecution and allow the public to participate in it in due course;thirdly,by exploring the construction of the system of non-prosecution with conditions for drunk driving,we should broaden the space for the exercise of the discretion of non-prosecution not to sue;finally,improve the "connection between criminal justice and administrative punishment" after non-prosecution,and match the appropriate non-penalty measures to supervise and implement the effect of assistance and education by following up the cases of non-prosecution in return visits.In addition,in order to make the slightly drunk driving actors better return to society,supporting the establishment of drunk driving crime file storage system,so that they have a real chance to start over.更多还原