重庆科技大学学报（社会科学版）Issue(4)：58-69,12.DOI:10.19406/j.issn.2097-4523.2025.04.006
有漏罪即撤销附条件不起诉规则的反思与完善
Reflections and Improvements on the Revocation Rule of Conditional Non-prosecution in the Presence of Omitted Crimes
摘要
Abstract
The rule of revoking conditional non-prosecution in the presence of omitted crimes is a unique and rigid rule in China.The legal and judicial interpretation determined implementation logic of this rule is as follows:if a minor,during the period of conditional non-prosecution,is found to have an omitted crime that they have not truthfully confessed to,they do not show substantial remorse and thus can no longer be subject to conditional non-prosecution.From a legal theory perspective,this implementation logic does not meet the value pursuit of being most favorable to minors in some cases,violates the principle of equality for all,and also creates gaps in the unity of the legal order among multiple criminal procedure systems.In response to this situation,it is necessary to interpret the connotation of"needs to be prosecuted"in the rule through a restrictive interpretation as"meets the conditions for prosecution,and does not meet the conditions for conditional non-prosecution or discretionary non-prosecution".It is also essential to fully grant the prosecuted party the right to participate in the decision-making regarding the revocation of conditional non-prosecution.Furthermore,the prosecutor's office should be allowed to actively apply for or withdraw the prosecution upon the court's suggestion to carry out conditional non-prosecution,or the court may independently initiate the"suspended judgment"procedure.关键词
附条件不起诉/漏罪/有悔罪表现/最有利于未成年人原则/暂缓判决Key words
conditional non-prosecution/omitted crime/show remorse/principle of most favorable to minors/deferred adjudication分类
社会科学引用本文复制引用
张裕荣..有漏罪即撤销附条件不起诉规则的反思与完善[J].重庆科技大学学报（社会科学版）,2025,(4):58-69,12.基金项目
国家社会科学基金后期资助项目"我国刑事司法多元模式及其现代化转型研究"(24FFXB079). （24FFXB079）
