“暂缓不起诉”制度的合法性缺失及其整合

法治的价值之一就在于保障法律规则的确定性和可预期性。一项新制度的设立有必要从法治的角度来审视其合法性与正当性,以维护法制的权威性和统一性。"暂缓不起诉"是地方司法机关创设的一项"新"制度,突破了现行的《刑事诉讼法》等法律的相关规定,缺失合法性。但作为一项新制度,它反映了一定的诉讼价值,具有一定合理性和正当性。因而,应采取适宜措施,在实践中加强"暂缓不起诉"制度正当性与合法性的整合。

The Legitimacy Defect and Integration of the System of "Deferred Prosecution"

One of the values of government by law lies in guaranteeing the definitude and expectability of legal system. When establishing a new system, we should judge its legitimacy and justifiability from the perspective of government by law in order to stick up for the authority and unity of the legal system. The Deferred Prosecution is a new system established by local judicial organization. Though this system breaks through related rules of Criminal Procedure Code in effect and those of other laws and lacks legitimacy, it represents certain value of lawsuit and enjoys certain legitimacy and justifiability as a new system. Therefore, due measures should be taken in practice to integrate the legitimacy and justifiability of the Deferred Prosecution.