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我国刑事诉讼法规定了提起公诉和不予起诉的适用条件,但没有规定案件“诉与不诉”的判断标准。而案件“诉与不诉”的判断实质上是起诉必要性审查问题,即有起诉必要性的案件应依法提起公诉,无起诉必要性的案件可酌定作出不起诉决定。我国没有建立起诉必要性审查制度,司法实践中的“有罪必诉”“有罪必罚”观念严重忽视了案件起诉的必要和价值。因此,构建起诉必要性审查制度,能够有效促使检察机关正确、充分行使起诉裁量权。
China’s Criminal Procedure Law provides for the prosecution of prosecution and non-prosecution conditions, but does not provide for the case “the lawsuit and no prosecution ” of the criteria. However, the judgment on the case of “prosecution and non-prosecution” is essentially the examination of the necessity of prosecution, that is, the case of necessity of prosecution should be prosecuted according to law, and the case of no necessity of prosecution can be decided discretionaryly. China has not established the system of necessary review of the prosecution. In the judicial practice, the concept of “guilty prosecution” and “guilty will be punished” seriously neglected the necessity and value of prosecution. Therefore, the construction of a system of censorship of necessity of prosecution can effectively prompt the procuratorial organs to correctly and fully exercise the discretion of prosecution.