Research On The Plea Negotiation In The System Of Leniency On Admission Of Guilt And Acceptance Of Punishment

With the criminal procedure legislation of the system of leniency on admission of guilt and acceptance of punishment,the plea negotiation mechanism in China’s criminal procedure has formally established.Although the legislative organ turns to be avoiding of using the words like “negotiation” or “bargain”,however,the local and central judicial organ including the Supreme People’s Court and the Supreme People’s Procuratorate has been using the “plea negotiation” phrase in practice of the system of leniency on admission of guilt and acceptance of punishment,which seems to be more active.In recent years,multiple research achievement has been obtained through the scholars’ study,which forms the basement of this paper.Overall,general common ground has been reached in regard of this subject,such as the dual meaning of the system of leniency on admission of guilt and acceptance of punishment,the value of efficiency and quality of the cases which adopted with the system of leniency on admission of guilt and acceptance of punishment,the importance if guaranteeing the suspect’s voluntarily of plea,the necessity of legal assistance,etc.Several major issues still exist;even some scholars still doubt the justification of China’s plea negotiation system.Theoretically,the 2018 amended criminal procedure law has established the plea negotiation mechanism through the way that the procuratorate organ listens to the opinion of the accused.In the meantime,the relevant judicial practice needs to be properly summarized and analyzed,such as the actual negotiation model between the two parties,the due process of plea negotiation,the sentencing proposal system in plea negotiation,the prosecutor’s objective obligation during the plea negotiation,the bargain chips of the defendant and lawyer,the effective role of defense lawyer and duty lawyer,the appeal of the accused after plea negotiation,the counter-appeal of the procuratorate organ after plea negotiation,the court’s disapproval of sentencing proposal after plea negotiation,etc.So the epical research of the plea negotiation mechanism in the system of leniency on admission of guilt and acceptance of punishment is vital in this paper.This paper contains every provincial epical study in regards of the system of leniency on admission of guilt and acceptance of punishment,in which the plea negotiation mechanism is thoroughly analyzed.What’s more,the author takes the prosecutor’s duty as an advantage to exercise the theories of the plea negotiation mechanism.Based on the concept of objective obligation,through the combined implementation of the system of leniency on admission of guilt and acceptance of punishment and the integration of the prosecutor’s arrest and prosecution power,this paper puts the plea negotiation theory into China’s criminal legal practice,including the investigation,indictment and trial procedure,which achieves several valuable experience.This paper contains five chapters and 32,000 words.The first chapter is the theoretical justification of plea negotiation mechanism based on the implantation of the system of leniency on admission of guilt and acceptance of punishment.Firstly,take the2002 “Meng Guanghu Case” as an example,the non-existence of China’s plea negotiation opinion believes that the localization of the plea bargaining system encounters various un-bridgeable gaps,such as the bargaining value doesn’t match the local criminal judicial value,the differentiation of proof standard weakens the negotiation basement,the prosecuting-oriented value of the duty lawyer system decreases the negotiation capability,the denial of access to the leniency criminal policy makes the negotiation information un-balanced.Secondly,the pilot aim of using plea bargaining reasonable element for reference has been alienated into legislative reiteration of the phrase “dominant leniency for those who confess while latent severity for those who resist”.In the meantime,the plea negotiation mechanism generated from the exercise of the system of leniency on admission of guilt and acceptance of punishment and now has been the core,which is fit for China’s legal status and world’s negotiate judicial wave.Thirdly,their lies the phenomenon of false confession in criminal cases,including confession under pressure and plea false-guilty,so it is bound to enhance the neutral status of adjudication organ and strengthen the participation of lawyers involving in criminal defense,so that the false confession in plea negotiation can be effectively avoided.The second chapter is the comparative study of plea negotiation mechanism based on the implantation of the system of leniency on admission of guilt and acceptance of punishment.There lies differences and commonsense in the way United States,United Kingdom,Germany and France treats the defendant who pleas guilty.Firstly,United States implements the plea bargain system in criminal procedural law,which is re-evaluated by domestic scholars,especially the effectiveness of criminal defense,the connection between pre-trial detention and plea the judge’s role and the judicial assessment,etc.Secondly,the plea negotiation system in United Kingdom’s criminal procedural law tends to be narrative,which binds the negotiation room.Thirdly,based on its own inquisitorial legal tradition,Germany’s plea negotiation system has limited space in sentencing bargaining.While in recent criminal reform practice,the negotiation between judges and defendants in Germany is sentenced to be constitutional,which draws the refection of domestic scholars.Fourthly,based on the transplantation spirit in criminal procedural law,several reasonable elements in the foreign countries’ plan bargaining system can be absorbed into China’s plea negotiation mechanism.The third chapter is the theoretical construction of plea negotiation mechanism based on the epical research of the system of leniency on admission of guilt and acceptance of punishment.Firstly,the fundamental connation of the plea negotiation mechanism must fit China’s own legal environment,including the principle,scope,subject,consideration,consensus and carrier.Several heated debating questions occur,such us the basic logic of “whether plea for leniency is the first gesture”,the negotiation in the investigation stage,the perfection of negotiation agreement,etc.Secondly,China’s plea negotiation mechanism tends to be applied into multiple situations,such as sentence negotiation,charge negotiation,heavy offenses and evidential doubtful cases.Thirdly,in order to prevent wrongfully accused cases after plea negotiation,it is bound to adhere to the fundamental principle and original intention of plea negotiation,such as enhance the prosecutors’ objective obligation and the bargaining chips of the defense side.The fourth chapter is the epical study of plea negotiation mechanism based on the investigation,indictment and trial phrase of the criminal procedure.The criminal procedure is practiced through time and space.During one particular case,the prosecution and defense are in one battle of choosing time and space of the criminal procedure.The legislation of the system of leniency on admission of guilt and acceptance of punishment reveals the subjective role of the accused.With the role of suspect to defendant and criminal,the choices the accused made about whether plea or not,accept the punishment or not,agree with the fast-track or summary procedure or not and appeal or not are all choices regarding the time and space of criminal procedure.Firstly,in the investigation stage,the investigators often bargain with the suspect in an inform way,while the prosecutors can formally negotiation with the suspect in the arrest viewing period through the integration between arrest and prosecution.Secondly,in the indictment stage,the negotiation mechanism between the prosecutor and suspect can be alienated,especially the improper domination of the carryout of the system of leniency on admission of guilt and acceptance of punishment.It is bound to construct the due process of the negotiation,expand the prosecutors’ free discretion like single fine sentencing proposal and non-prosecution in misdemeanor,and uphold the bottom line of plea negotiation principle in the corona-virus epidemic prevention period.Thirdly,in the trial stage,the plea negotiation can be carried out in the pretrial conference,the layer can make innocent advocacy while the defendant pleads guilty and the sentencing proposal can be altered in accordance with the law,which implied the apparent or unapparent participation of the presiding judge.The fifth chapter is the effectiveness study of plea negotiation mechanism after the two parties sign on the negotiation deal.Firstly,after pronouncing the judgment of simple cases of admission of guilt and acceptance of punishment,the plead defendant appeal on the grounds of serving the sentence in the detention house.The right of appeal to the simple cases of admission of guilt and acceptance of punishment is doubted to be cancelled or limited,the defendant appeal on the grounds of serving the sentence in the detention house is rational other than abusive,which should be treated to honor the choice of the serving place by the defendant,and it is bound to empower the court to decide the serving place.Secondly,the counter-appeal in dealing with appeal demonstrates reasonability crisis of the so-called judicial “bully”and feasibility crisis of inadequate basis and operational blind spot.It is bound to recognize the value of appeal system,appraise the appeal dialectically in the system of leniency on admission of guilt and acceptance of punishment,seize the counter-appeal system fully and maintain the prosecutorial modestly restraining of no counter-appeal.In this way,the misunderstanding opinion of counter-appeal in dealing with appeal can be effectively eliminated.Thirdly,take the 2019 “Yu Jinping Case” as an example,during the operation of the system of leniency on admission of guilt and acceptance of punishment,the prosecutorial lead conflicts with trial center,especially when the sentencing proposal must be accepted generally according with the criminal procedure law.In order to resolve the conflict,the prosecutorial organ and judicial organ must start with mutual respect and enhance the mutual communication of conviction and sentencing in the system of leniency on admission of guilt and acceptance of punishment,so that the prosecutorial lead and trial center can be effectively blended.