Volume 02 Issue 12-2022
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(ISSN
–
2771-2214)
VOLUME
02
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12
Pages:
20-28
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ABSTRACT
The article comparatively analyzes the norms of the criminal procedure legislation of some Asian countries related to
the procedure and features of private prosecution cases and sets out recommendations for improving the institution
of private prosecution in the domestic criminal process.
KEYWORDS
Criminal procedure law, private prosecution, reconciliation, victim, features of the application of the institute of
private prosecution, refusal to initiate criminal proceedings, termination of criminal proceedings, improvement of the
institute of private prosecution.
INTRODUCTION
Dispositivity in criminal proceedings, including the
essence of the institution of private prosecution, the
procedure for its application and understanding of its
specific aspects, as well as the study of positive
experience of foreign countries in this regard for
further improvement, serve to achieve effective
results. At the same time, studying the positive or
negative aspects of the experience of countries that
have recently or for many years used the institute of
private prosecution, allows us to successfully
introduce positive practices into national legislation
without repeating the mistakes made there.
Research Article
REGULATION OF THE INSTITUTE OF PRIVATE PROSECUTION IN THE
LEGISLATION OF SOME ASIAN COUNTRIES
Submission Date:
December 17, 2022,
Accepted Date:
December 22, 2022,
Published Date:
December 27, 2022
Crossref doi:
https://doi.org/10.37547/ijlc/Volume02Issue12-05
Bekhzod Nurboyevich Rashidov
Head Of The Department Of Criminal Procedure Law Of Academy Of The Ministry Of Internal Affairs Of The
Republic Of Uzbekistan, Doctor Of Law, Associate Professor, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 02 Issue 12-2022
21
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
02
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12
Pages:
20-28
SJIF
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FACTOR
(2021:
5.
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(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
Many Asian countries also have a continental legal
system. For example, China, South Korea, and Japan
have adopted their criminal and criminal procedure
laws based on French legislation and the legislation of
other European countries that have taken a model
from it
1
.
The main sources of criminal procedure law of the
People's Republic of China are the Constitution of the
People's Republic of China of December 4, 1982, the
Criminal Code of July 1, 1979 (as amended on March 14,
1997) and the Criminal Procedure Codes of July 1, 1997
(as amended on March 17, 1996)
2
. The Chinese criminal
process also consists of pre-trial proceedings, the trial
stage, and the execution of the sentence. Pre-trial
proceedings consist of the initiation of a criminal case,
a preliminary investigation, and the presentation of
charges. A special procedure for conducting private
prosecution cases at trial stages is regulated (articles
170-173 of the Code of Criminal Procedure). According
to it, the cases of private prosecution include: 1) cases
that are considered only on complaints received, that
is, cases related to crimes provided for in articles 246,
257 (Part 1), 260-1, 270 of the Criminal Code of China; 2)
cases where the victim has evidence of a minor crime;
1
Criminal law of foreign countries. General part: textbook for
undergraduate and graduate studies / Edited by A.V.Naumov,
A.G.Kibalnik.
–
M.: Yurayt Publishing House, 2018.
–
pp.14-15;
https://ru.qwe.wiki/wiki/Criminal_justice_system_of_Japan
Mishina E.A. Reform of the justice system in Japan // Law.
Journal of the Higher School of Economics.
–2011. №3.
[Electronic
resource].
Access
mode:
https://cyberleninka.ru/article/n/reforma-sistemy-
pravosudiya-v-yaponii (Accessed June 29, 2020).
2
Course Completed process / under order. Prof. L.V. Golovko.
- 2nd ed. - M.: Statute, 2017. - S.208-210. [Electronic resource].
(Accessed June 29, 2020). Access mode:
http://www.consultant.ru/edu/student/download_books/bo
ok/golovko_kurs_ugolovnogo_processa
3
Criminal Procedure Code of the PRC (adopted on July 1, 1979
at the 2nd session of the Assembly of people's representatives
3) cases where the victim has evidence indicating that
the defendant should be brought to criminal
responsibility in accordance with the law, that is, his
actions threatened the personal or property rights of
the victim, while the public security div or the
prosecutor's office did not conduct an investigation
3
.
The public insult specified in the articles of the Criminal
Code of the People's Republic of China (Article 246),
infringement of a citizen's right to freedom of marriage
(Article 257-1), ill-treatment of family members if it
entailed grave consequences (Article 260, Part 1), the
crime of illegal possession of property transferred for
storage or forgotten (Article 270), may entail
responsibility only based on the victim's statement
4
.
According to Chinese law, in cases of private
prosecution, the victim can file a complaint with the
public security agency, the People's Prosecutor's
Office or the court. If the victim's complaint is accepted
by the public security div, the prosecutor's office and
a criminal case is initiated in a general manner, an
investigation is conducted, charges are brought based
on its results and the case is sent to court. If the public
security div, the prosecutor's office has not
of the fifth convocation, on March 17, 1996 with amendments
to the decree on the introduction of amendments to the
"Criminal Procedure Code of the PRC"adopted at the 4th
session of the Assembly of people's representatives of the
eighth convocation [Electronic resource]. Access mode:
https://chinalawinfo.ru/procedural_law/law_criminal_proced
ure
4
The Criminal Code of the PRC (adopted on July 1, 1979 at the
2nd session of the Assembly of people's representatives of the
fifth convocation, on March 14, 1997 with amendments made
in accordance with the decision made at the 5th Session of the
Assembly of people's representatives of the eighth
convocation) [Electronic resource]. Access mode:
business.ru/law/law1/criminalcode/
2020).
Volume 02 Issue 12-2022
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investigated on the complaint of the victim, the victim
has the right to apply directly to the court.
The court gets acquainted with the case of the private
prosecution and proceeds to the trial, if the actual
circumstances of the crime have been clarified, if the
evidence available in the case is sufficient, if the
evidence in the case of the private prosecution is
insufficient and the victim cannot provide additional
evidence, it invites the person who filed the complaint
to withdraw his complaint or makes a ruling on refusal
to satisfy the complaint. If the person who filed a
private complaint fails to appear in court twice without
valid reasons on summons in accordance with the law
or withdraws from the courtroom without court
permission, consideration of the complaint is canceled.
During the trial, if some evidence causes doubt in the
judge, a break is announced, and they can be
investigated.
In cases of private prosecution, the court may take
measures to reconcile the parties. The victim has the
right to reconcile with the defendant or withdraw his
complaint before sentencing. Reconciliation is not
allowed if the victim has evidence that the defendant
is subject to criminal prosecution in accordance with
the law, that is, that his actions threatened the
personal or property rights of the victim, as well as in
cases where the public security div or the public
prosecutor's office did not investigate (Part 3 of Article
170 of the CPC). In cases of private prosecution, the
accused may file a counterstatement. This counter -
statement will also be considered in the order of
consideration of cases of private prosecution
5
.
China's criminal procedure legislation also provides for
simplified judicial procedures. According to it, the
5
Same source. 171-173 articles.
People's Court may apply a simplified review
procedure, which is carried out by one judge alone in
the following cases: 1) in cases initiated by the state
prosecution, in which a person, in accordance with the
law, may be sentenced to imprisonment for up to three
years, arrest, supervision, fine, with clarity of factual
circumstances, completeness of evidence and when
the People's Prosecutor's Office proposes or agrees to
apply a simplified procedure for consideration; 2) in
cases that are being considered only by application; 3)
in minor criminal cases in which the victim has evidence
indicating the commission of a crime.
In simplified proceedings, the judge must complete the
examination within 20 days from the date of receipt of
the case in court. If it is established that it is impossible
to consider the case in a simplified manner, the court
re-examines the case in accordance with the
established procedure.
The sources of South Korean criminal procedure law
include the Constitution of the Republic of Korea of
July 17, 1948 (as amended on October 29, 1987), the
Criminal Code and the Criminal Procedure Code of
September 18, 1953, and other laws. Korean criminal
proceedings also consist of pre-trial proceedings and
court proceedings. In pre-trial proceedings, there are
processes before and after the initiation of a criminal
case against a person. Criminal prosecution is initiated
by the prosecutor, because of which the person is
charged and acquires the status of the accused. After
the indictment, the case is transferred to the court and
preparations for the trial begin.
According to Korean law, for the crimes of "Disclosure
of facts discrediting the name of the deceased" (Article
308 of the Criminal Code), "Slander" (Article 311),
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"Disclosure of secrets" (Article 316), "Disclosure of
secrets of other persons known in professional
activities" (Article 317), criminal prosecution is carried
out only if there is a complaint. For crimes related to
the disclosure of facts discrediting the name of another
person (Article 307 of the Criminal Code) and the
disclosure of facts discrediting the name of another
person (Article 309), criminal prosecution cannot be
initiated if the victim objects. Resistance to the use of
a person's rights (Article 323), theft, unauthorized use
of someone else's transport (Articles 329-332), fraud
and extortion (Articles 347-352), misappropriation of
property by abuse of trust (Articles 355-360), theft of
looted property (Articles 362-364) crimes if they are
committed against close relatives of the accused,
spouse, family members families, cohabiting relatives
and their spouses, a person is not held liable, and when
committing against other relatives
–
criminal
prosecution can be carried out only if there is a
complaint from the victim
6
.
Korean law also provides for a simplified judicial
procedure. Cases in which a fine (recovery of money)
may be imposed, as well as penalties in the form of
confiscation applied at the request of the prosecutor,
may be considered in a simplified manner
7
.
The main sources of Japanese criminal procedure
legislation are the Constitution of Japan of May 3, 1947,
6
Same source 174-179 articles.
7
Criminal Code of the Republic of Korea with amendments and
additions until February 6, 2020 [Electronic resource]. Access
mode:
https://vseokoree.com/vse-o-koree/zakony-i-
normativnye-pravovye-akty/ugolovnyj-kodeks-respubliki-
koreya
8
Legal Proceedings in South Korea [Electronic resource].
Access
mode:
https://vseokoree.com/zhizn-v-
koree/sudebnye-protsessy/sudoproizvodstvo-v-
yuzhnojkoree-2
the Criminal Code of Japan of April 24, 1907 (currently
amended on May 12, 1995
8
) and the Criminal Procedure
Code of July 10, 1948
9
. Although the Japanese Criminal
Procedure Code was developed based on the
European continental legal system, it also includes
positive aspects of Anglo-American law. Limitations on
the admissibility of certain evidence, such as the
system of contesting in court proceedings.
Accordingly, the current Criminal Procedure Code of
Japan can be characterized as a hybrid of continental
and Anglo-Saxon legal systems
10
.
According to Japanese law, "Violation of the secrecy of
correspondence" (Article 133 of the Criminal Code),
"Disclosure of secrets" (Article 134), committing
obscene acts with the use of force (Article 176), slander
(Article 177)), committing obscene acts and actions
equivalent to rape (Article 178) and attempted (179),
causing bodily injury by negligence (Article 209), crimes
related to kidnapping (Article 224, Article 225, part 1, 3
of Article 227) if they are not committed with malicious
intent, crimes against honor (Article 230, Article 230-2,
Article 231) theft between relatives (If committed by
close (direct) relatives, spouse, cohabitant, they are
not held accountable by Article 235), damage to
personal documents (Article 259), damage to
equipment (Article 261) and concealment of
correspondence (Article 263) crimes are considered
only on the basis of the victim's statement
11
.
9
Criminal Law of Japan (with amendments and additions until
January 7, 2018) [Electronic resource]. Access mode:
https://constitutions.ru/?p=407
10
Criminal Procedural Law of Japan (with amendments and
additions until May 8, 2006) [Electronic resource]. Access
mode:
https://www.oecd.org/site/adboecdanti-
corruptioninitiative/46814489.pdf
/
(Accessed June 29, 2020).
11
Mishina E.A. Reform of the justice system in Japan // Law.
Journal of the Higher School of Economics.
–2011. №3.
[Electronic
resource].
Access
mode:
Volume 02 Issue 12-2022
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(ISSN
–
2771-2214)
VOLUME
02
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(2021:
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(2022:
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–
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Articles 230-246 of the Criminal Procedure Code of
Japan describe who can file a complaint in cases of
private prosecution, the procedure for filing a
complaint, the procedure for withdrawing a complaint
and its consequences. Complaints about crimes
initiated based on an application will not be accepted
for production after six months after the commission
of a crime against the victim and the identification of
the person who committed it. However, these
provisions do not apply to crimes committed against
official representatives of foreign States provided for
in articles 176-178, 225 and parts 1, 3 of Article 227 of the
Criminal Code of Japan
12
. At the same time, it is noted
that the complaint can be withdrawn before a criminal
case is initiated, and such a person will be deprived of
the right to re-appeal for the same situation. It is
established that representatives of legal entities can
file a complaint, and complaints about private charges
are submitted to the prosecutor or bailiff. A judicial
police officer investigates and, if there are sufficient
grounds, transfers the case to the prosecutor. The
prosecutor may initiate criminal prosecution or refuse
to initiate it after reviewing the case materials. After
the initiation of criminal prosecution, the case is
transferred to the court.
Japan also has an expedited judicial procedure. It may
be considered cases of crimes punishable by
imprisonment for up to one year
13
.
The criminal process in many Muslim countries is also
based on the French legal system. At the same time,
there are some features that have been formed under
the influence of Sharia norms. Among Muslim
https://cyberleninka.ru/article/n/reforma-sistemy-
pravosudiya-v-yaponii (Accessed June 29, 2020).
12
Criminal Law of Japan (with amendments and additions until
January 7, 2018) [Electronic resource]. Access mode:
https://constitutions.ru/?p=407
countries in Saudi Arabia and Iran, criminal
proceedings are most consistent with sharia. But
recently, elements of the European criminal process
have been introduced in these countries as well. Given
the widespread use of the institution of private
prosecution in Sharia law, at this stage it is advisable to
analyze the criminal procedure legislation of these
countries.
The main sources of Saudi Arabia's criminal procedure
law are the Holy Quran, Sunnah, Sharia, and the Basic
Provision on the Government of March 1, 1992, as well
as the Criminal Procedure Law of October 16, 2001,
which is in force to ensure the implementation of the
Holy Quran, Sunnah, Sharia, and the Basic Provision on
the Government. Criminal Procedure (promulgated by
Royal Decree No. M/39 of 28 Rajab 1422 (16 October
2001)), adopted on October 16, 2001, and promulgated
on November 3, 2001, consists of article 225. The first
article of this law states that "Judges are obliged to
apply the principles (requirements) of Sharia law in the
same way as they are contained in the Holy Quran and
the Sunnah, when resolving cases submitted to them
for consideration. They must also apply the laws
established by the State in such a way that it does not
contradict the Holy Quran and the Sunnah and comply
with the rules established in accordance with this law".
Article 3 states that "a person may not be subjected to
any punishment, except in cases when he is found
guilty of committing an act prohibited and punishable
by the principles of Sharia or the laws of the State,
rendered as a result of a court hearing held in
accordance with the provisions of Sharia and a decision
that has entered into legal force"
14
. Other provisions
13
Criminal Procedural Law of Japan (with amendments and
additions until May 8, 2006) [Electronic resource]. Access
mode:
https://www.oecd.org/site/adboecdanti-
corruptioninitiative/46814489.pdf
/
(Accessed June 29, 2020).
14
Same source.
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Publisher:
Oscar Publishing Services
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of this law also contain provisions of universal content.
Saudi Arabia has introduced a criminal process like the
French model of criminal procedure. In Saudi Arabia,
for example, there are stages of pre-trial and judicial
proceedings. If pre-trial proceedings consist of the
initiation of a criminal case and a preliminary
investigation, then the judicial stages consist of
submission to the court, trial, proceedings in the
appellate instance, proceedings related to the review
of court decisions and the execution of the sentence
15
.
In particular, the direction of the indictment, drawn up
by representatives of the Bureau of Investigation and
the
Prosecutor's
Office
implementing
public
prosecution (interest), the rules on serious crimes
applied to publicly committed crimes, the rules on
evidence, the rules on preventive measures and other
norms, from the point of view of legal technology do
not differ significantly from the norms of legislation of
other countries
16
. According to the principles of Sharia
in Saudi Arabia, the procedure for criminal prosecution
is different, that is, private, private-public, and public,
based on the classification of the system of crime and
punishment in Muslim law (kasas, ta'zir, hadd). In Saudi
Arabia, a private prosecution is based on a victim's
complaint. The victim has a wide range of rights in
15
Saudi Arabia Law of Criminal Procedure (promulgated by
Royal Decree No. M/39 of 28 Rajab 1422 (16 October 2001):
(Saudi Arabia Law of Criminal Procedure) [Electronic resource].
Access mode:
https://wipolex.wipo.int/en/text/498395 /
(Accessed June 29, 2020).
16
Husenova P.A. Islamic criminal procedure: religious and legal
nature and characteristic features (on the example of the
Islamic Republic of Iran and the Kingdom of Saudi Arabia): Diss.
... cand. of law sciences.
–
St. Petersburg, 2016.
–
pp.120-121.
[Electronic
resource].
Access
mode:
(Accessed June 29, 2020).
criminal prosecution, including the right to participate
in all investigative actions, and the forgiveness of the
accused by the victim is the basis for the termination of
the case. In private-public cases, criminal prosecution is
initiated only based on the victim's complaint, but the
victim's forgiveness cannot be the basis for the
termination of the case
17
.
Saudi Arabia also has a simplified procedure for legal
proceedings. The absence of the Prosecutor's Office as
an independent div of criminal prosecution in Saudi
Arabia also contributes to the conduct of a simplified
trial. Such proceedings may be applied only in relation
to criminal cases in which a punishment in the form of
a taser is applied. In this case, if the accused pleads
guilty, the court issues a verdict without examining the
evidence, even if the accused does not appear in court,
the verdict may be pronounced after the case has been
considered
18
.
Iran, like other neighboring countries, has developed
its own criminal procedure code based on the model of
French criminal procedure law. The first CPC of Iran
was adopted in 1912. After the events of 1979, purely
Muslim criminal procedural norms were introduced in
Iran, as a result of which the prosecutor's office and
17
The course of the criminal process / Edited by prof. L.V.
Golovko.
–
2nd ed.,
–
M.: Statute, 2017.
–
pp.221-222.
[Electronic
resource].
Access
mode:
http://www.consultant.ru/edu/student/download_books/bo
ok/golovko_kurs_ugolovnogo_processa/
(Accessed June 29, 2020).
18
Saudi Arabia Law of Criminal Procedure (promulgated by
Royal Decree No. M/39 of 28 Rajab 1422 (16 October 2001):
(Саудия Арабистонининг Жиноят
-
процессуал қонуни)
[Electronic
resource].
Access
mode:
https://wipolex.wipo.int/en/text/498395
(Accessed:
02.07.2020)
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SJIF
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(2021:
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5.
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)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
the courts of general jurisdiction were abolished. After
some time, the old order was reintroduced, and in 1982
the courts of general jurisdiction were reorganized.
Since then, the general courts and the Revolutionary
Tribunal have simultaneously functioned as courts
dealing with criminal cases. In 1999, a new Iranian CPC
was adopted. In 2002, the Prosecutor's Office was
restored. In the Criminal Procedure Code of Iran,
crimes are divided into three, respectively, and the
procedure is different: 1) crimes punishable under
Muslim law (Sharia)
–
public prosecution (prosecution)
is carried out; 2) crimes against public interests and
public order
–
public-private prosecution is carried out;
3) crimes violating the individual rights of individuals
and legal entities
–
private prosecution is carried out
19
.
The peculiarity of the Iranian criminal process is that
pre-trial proceedings are carried out under the control
of the courts. Conducting a preliminary investigation is
considered to be the responsibility of the chairman of
the courts, who can carry out all activities personally or
entrust the investigation to their assistants or the
investigating judge. After the reorganization, the
Prosecutor's office was completely subordinated to
the judicial authorities. In the new Code of Criminal
Procedure adopted in Iran in February 2014 and which
came into force in June 2015, the structure of the
current criminal process has not been seriously
changed, but the former position of the prosecutor's
office has been restored, the rights of the accused
have been strengthened. Thanks to this, the criminal
19
Husenova P.A. Islamic criminal procedure: religious and legal
nature and characteristic features (on the example of the
Islamic Republic of Iran and the Kingdom of Saudi Arabia): Diss.
... cand. of law sciences.
–
St. Petersburg, 2016.
–
pp.120-121.
[Electronic
resource].
Access
mode:
https://www.dissercat.com/content/islamskii-ugolovnyi-
process of Iran has become closer to the criminal
process of Europe and other countries.
According to article 3 of the Criminal Procedure Code
of Iran, cases of private and public-private prosecution
are investigated on the initiative of an individual or
legal entity. In cases of public-private prosecution, if
the investigation is conducted only on the claim of
individuals or legal entities, the case is not terminated
even if the plaintiff (victim) forgives the defendant
(accused). In cases of private prosecution, the
forgiveness of the accused by the victims is the basis
for the termination of the case. If the victim forgives
the accused after sentencing, the punishment will not
be carried out.
The criminal process of Iran, as in France, consists of
the stages of inquiry, investigation and trial. In cases of
private prosecution, the application is submitted
directly to the court without an inquiry. The court is
obliged to accept the application and begin an
investigation. In general, there is no specific procedure
for conducting cases related to private prosecution in
Iran, although this category of cases is conducted
according to the general procedure, the victim who
filed the complaint has broad procedural rights. For
example, he can submit the information he has
collected, withdraw his claim at any stage of the
proceedings or pardon the accused. In these cases, the
production is terminated
20
.
protsess-religiozno-pravovaya-priroda-i-kharakternye-cherty-
na-primere
(Accessed: 02.07.2020)
20
Criminal Procedure Code of the Islamic Republic of Iran
[Electronic
resource].
Access
mode:
https://www.dissercat.com/content/islamskii-ugolovnyi-
protsess-religiozno-pravovaya-priroda-i-kharakternye-cherty-
na-primere (Accessed: 02.07.2020)
Volume 02 Issue 12-2022
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(ISSN
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VOLUME
02
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Pages:
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SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
In general, the study of various experiences allows you
to think about a particular issue in a comprehensive
way, and then draw a conclusion. According to the
analysis of the norms concerning the regulation of the
institution of private prosecution in the legislation of
the countries discussed above, it can be said that the
institution of private prosecution is effectively used in
these countries. And some of their positive aspects will
be appropriately reflected in national legislation.
REFERENCES
1.
Criminal law of foreign countries. General part:
textbook for undergraduate and graduate
studies / Edited by A.V.Naumov, A.G.Kibalnik.
–
M.: Yurayt Publishing House, 2018.
–
pp.14-15;
https://ru.qwe.wiki/wiki/Criminal_justice_syste
m_of_Japan; Mishina E.A. Reform of the justice
system in Japan // Law. Journal of the Higher
School of Economics.
–2011. №3. [Electronic
resource].
Access
mode:
https://cyberleninka.ru/article/n/reforma-
sistemy-pravosudiya-v-yaponii (Accessed June
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VOLUME
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SJIF
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FACTOR
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705
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5.
705
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