On The System Of Sentencing Recommendation In The Case Of The Admission Of Guilt And Acceptance Of Punishment

With the reform of the leniency system of the admission of guilt and acceptance of punishment,the system of sentencing recommendation in the case of the admission of guilt and acceptance of punishment has added new content,new function and new value on the basis of the original sentencing recommendation.as a result,there are great differences in the understanding and application of the sentencing recommendation system in the case of the admission of guilt and acceptance of punishment in the theoretical and practical circles.Although the theoretical achievements of the traditional sentencing recommendation system are relatively fruitful,the theoretical supply of the sentencing recommendation system for the case of the admission of guilt and acceptance of punishment is limited.However,the theoretical research on the sentencing recommendation system of the case of the admission of guilt and acceptance of punishment is not enough,and the systematicness,depth and application of the research need to be further strengthened.Therefore,based on different characteristics of sentencing recommendation in the case of the admission of guilt and acceptance of punishment and punishment,combined with practical problems and theoretical disputes,this paper makes a comprehensive and systematic study on four aspects: the standard of lenient punishment,the mode of sentencing recommendation,the procedure of sentencing recommendation and the effectiveness of sentencing recommendation,so as to provide theoretical supply for the improvement and fair implementation of the system of sentencing recommendation in the case of the admission of guilt and acceptance of punishment.In addition to the introduction and conclusion,the Ph.D dissertation is divided into five chapters,with a text of more than 150000 words.Chapter Ⅰ explains the meaning and function of sentencing recommendation system,and the important role of sentencing recommendation in the system of the admission of guilt and acceptance of punishment.A correct understanding of the meaning and function of the sentencing recommendation system is the basis of studying the system of sentencing recommendation in the case of the admission of guilt and acceptance of punishment.Sentencing recommendation is a kind of recommendation,a recommendation put forward by the procuratorial organ,and a recommendation put forward by the procuratorial organ based on the procuratorial power.Therefore,sentencing recommendation power is a typical procedural power.However,in the system of the admission of guilt and acceptance of punishment,the power of sentencing recommendation has the attribute of substantive power because of the rigid restriction of sentencing recommendation to sentencing judgment.According to the overall certainty of sentencing recommendation,sentencing recommendation can be divided into absolute certainty and relative certainty.The main functions of sentencing recommendation system include promoting sentencing justice,realizing sentencing balance,improving sentencing efficiency and enhancing sentencing publicity.However,the important role of sentencing recommendation in the system of g the admission of guilt and acceptance of punishment is mainly reflected in the following four aspects: first,sentencing recommendation is the main carrier to fulfill the lenient commitment of procuratorial organs;second,sentencing recommendation is an important means to encourage the accused to plead guilty and accept punishment;third,sentencing recommendation has a special influence on the sentencing judgment of the court;fourth,Sentencing recommendation is the basic way to give full play to the leading role of Procuratorial organs.It is precisely because of these particularities that the standard of lenient punishment,the mode of sentencing recommendation,the procedures of sentencing recommendation and the effectiveness of sentencing recommendation in the case of the admission of guilt and acceptance of punishment have many characteristics.Chapter Ⅱ studies the standard of lenient punishment in the case of the admission of guilt and acceptance of punishment.Under the lenient system of admission of guilt and acceptance of punishment,"lenient punishment" is the core content of sentencing recommendation."lenient punishment" mainly involves three major issues: "the basis of lenient punishment","the mechanism of lenient punishment" and "the range of lenient punishment"."the basis of lenient punishment" is the theoretical basis for solving the latter two kinds of problems.First,compared with foreign laws,it is found that the pluralistic model guided by the purpose of criminal policy or legislation is the development law of legitimate foundations of the leniency based on the admission of guilt,and it presents different combination models because of different value choices.litigation economy,protection of the interests of victims and witnesses or clarification of facts are important constituent factors,while defendant repentance is an additional constituent factor.In the light of China’s judicial reality,legislative principles and the basis of penalty,generally speaking,the basis of lenient punishment under the leniency system of admission of guilt and acceptance of punishment should be the pluralistic mode of "litigation economy,clarification of facts,protection of the interests of the victim" and "repentance of the defendant and mitigation of responsibility punishment".In felony,duty crime and other cases,the basis of lenient punishment has changed to a certain extent.Secondly,"lenient punishment" refers to the "lenient punishment" corresponding to the circumstances of admission of guilt and acceptance of punishment,and is endowed with the function of "can be lenient" by legislation.However,from the basis of "lenient punishment",each of the above basis reflects the different value functions of the lenient system of admission of guilt and acceptance of punishment and "lenient punishment" is the safeguard measure for the realization of these value goals.In fact,the so-called "no leniency punishment" mainly means that the responsibility penalty corresponding to a felony case is so high that the accused should get a "leniency punishment" after pleading guilty and punishment,which can’t be reflected in the final sentencing result.Therefore,once the accused voluntarily pleads guilty and punishment,the organs of public power should give them the "lenient punishment" they deserve according to the above five different combinations.Finally,based on the basis of "lenient punishment",and combined with the provisions of the Criminal Law,"lenient punishment" includes three options: lighter punishment,mitigated punishment and exemption from punishment.Generally speaking,if the accused who pleads guilty and punishment does not have legal circumstances such as mitigating or exempting punishment,the procuratorial organ shall put forward the suggestion of lighter punishment within the legal range.However,even if there is no other statutory circumstances of mitigation or exemption from punishment,as the "confession and punishment circumstances" itself contains a number of grounds for lenient punishment,"lenient punishment" should not be limited to lenient punishment.For example,the accused who pleads guilty and accepts punishment also has other circumstances of reducing the necessity of crime prevention or reducing the responsibility punishment,that is,the basis of lenient punishment of pleading guilty and accepting punishment itself,which can be reduced or exempted from punishment according to the situation of the case.In addition,if the accused has a single "can" mitigated punishment at the same time,the mitigated punishment shall be considered according to the circumstances of the crime,and there are more than two "can" mitigated punishment circumstances,in the absence of reverse circumstances of heavier punishment,shall be mitigated.If the respondent has a single "should" mitigated punishment at the same time,it should be mitigated,and if there are multiple "should" mitigating circumstances,it shall be lowered several times until the minimum penalty file.If the accused has the circumstances of "can" be exempted from punishment,actively compensates for the losses of the victim,returns the stolen goods and compensation,or obtains the victim’s understanding,and the crime is relatively minor,as the need for prevention is further reduced,or even there is no need for prevention,and the punishment for responsibility is relatively low,the accused shall be exempted from punishment;if the accused has the circumstances of "should" exemption from punishment,and the crime is relatively minor,he shall also be exempted from punishment.At the same time,the lenient proportion should be combined with the basis of lenient punishment: first,the lenient proportion of "litigation economy" should be grasped according to the different litigation stages of pleading guilty and punishment and the application of different types of trial procedures.however,the value of litigation economy in the sentencing concession of the admission of guilt and acceptance of punishment should not be overestimated.The second is to grasp the lenient range of "protecting the interests of victims" according to the sentencing guidelines issued by the Supreme people’s Court,including compensation for victim losses,victim understanding,return of stolen goods,compensation and so on.Third,it is necessary to reduce the leniency of "sincere repentance" from the overall prevention,that is,the range of lighter punishment is greater than that of pleading guilty and accepting punishment unrepentantly.The fourth is to grasp the lenient range of "clarifying facts" according to the value of detecting the case and combining different forms of confession,such as voluntary surrender,confession and confession in court.Fifth,in order to ensure that the leniency does not deviate from the principle of adaptation of crime,responsibility and punishment,we should set the maximum proportion of leniency punishment and limit the maximum penalty reduction at the same time.In addition,in felony cases,on the one hand,it is necessary to reduce the lenient proportion of "realizing litigation economy" and increase the leniency ratio of "clarifying the facts of the case" and "protecting the interests of the victims",which is consistent with its value pursuit.on the other hand,it is limited to give the mitigated punishment function of "clarifying the facts of the case" and "protecting the interests of the victim" in felony cases,so as to enhance the incentive effect of the leniency system of admission of guilt and acceptance of punishment in felony cases.In duty crime cases,on the surface,the identification standard of "lenient punishment" seems to have changed to a certain extent,which in turn affects the range of lenient punishment.But in fact,it is only different forms of "pleading guilty and accepting punishment" corresponding to different degrees of "lenient punishment".Chapter Ⅲ studies the mode of sentencing recommendation in the case of admission of guilt and acceptance of punishment.Since the reform of the leniency system of admission of guilt and acceptance of punishment,under the guidance of procuratorial organs,the mode of sentencing suggestion has gradually changed from "range penalty orientation" to " definite penalty orientation".However,through the empirical analysis,it is found that the setting of the sentencing recommendation model should not only consider the internal factors such as the legal range,the severity of the crime,the circumstances of sentencing,the number of charges,the facts of the crime,etc.,but also consider the will of the accused,the participation of the defender or duty lawyer,the opinion of the victim,the attitude of the judge and other external factors.Otherwise,it not only violates the law of sentencing,but also does not fully accord with the interest expectations of the judicial organ,the accused,the victim and other subjects.Finally,on the basis of the diversity of contents and forms of sentencing recommendation in the case of admission of guilt and acceptance of punishment,this paper puts forward a multi-level sentencing proposal model based on static and dynamic scheduling:first,based on different principal punishment files,the form of setting flexible range penalty and determining penalty is set,and the additional penalty is determined according to the principal penalty mode,in order to ensure the unification of sentencing suggestion.Second,taking the state of dynamic factors as the scheduling,summing up experience to provide guidance for practical departments,in order to ensure the individualization of sentencing recommendation.Chapter Ⅳ studies the procedure of sentencing recommendation in the case of admission of guilt and acceptance of punishment.The core of the lenient system of admission of guilt and acceptance of punishment is to realize the "lenient punishment" that the accused should get after pleading guilty and accepting punishment through the procedural mechanism.This kind of procedural mechanism is the recommended procedure of sentencing in the case of admission of guilt and acceptance of punishment,including external negotiation procedure and internal control procedure.The external negotiation procedure includes the scope of the case,the system space,the procedure mode,the safeguard measures and so on.First,from the point of view of the necessity of negotiation,the main field of leniency in negotiation is that the accused pleads not guilty or accepts not punishment,because if the accused always pleads guilty and agrees with the sentencing proposal of the procuratorial organ,there is little room for both the prosecution and the defense to apply leniency through negotiation.At the same time,for cases involving victims,especially felony cases,when discretion leniency is not effective,negotiation leniency can be appropriately used to encourage the accused to take the initiative to compensate for the losses of the victims.Second,from the content of negotiation,negotiation should be based on sentencing negotiation,supplemented by accusation negotiation,as long as it meets the conditions set by substantive law and procedural law.Third,from the perspective of system design,the sentencing recommendation in the case of the admission of guilt and acceptance of punishment is the result of negotiation between the prosecution and the defense,and the judge can only review it afterwards.However,it has become the judicial norm for procuratorial organs to solicit the opinions of judges on the issue of sentencing in advance.There are serious differences in the field of law.Although there may be some potential defects in allowing judicial intervention,it also has irreplaceable functional advantages,such as restraining the strong procuratorial power and protecting the interests of the vulnerable accused.And through the establishment of corresponding safeguard measures to reduce or even eliminate its adverse effects.According to the investigation of some states in the United States,it is found that there are different degrees of judge intervention in plea bargaining,including judge intervention by consultant and judge by mediator.The practical experience of these two models shows that only active and full intervention of judges can provide more accurate advice for both prosecution and defense,and it is difficult to limit the role of judges to the scope of consultants.Therefore,under the lenient system of the admission of guilt and acceptance of punishment,it is appropriate to adopt the judicial intervention model of mediator,that is,to play an active mediation role in how to resolve the dispute between the prosecution and the defense on sentencing recommendations.Fourth,based on the existing structural imbalance between prosecution and defense and the resulting structural enforcement and other problems,improving the imbalance between prosecution and defense in the case of admission of guilt and acceptance of punishment is the key to ensure the good operation of the sentencing proposal negotiation procedure.The internal control procedure is a measure to control the quality of sentencing recommendation within the Procuratorate,but the premise is to conform to the judicial law to the maximum extent.In the case of admission of guilt and acceptance of punishment,it is precisely because of the attorney general’s authorization system in our country that the power of presentation,decision and adjustment of sentencing recommendation are divided to a certain extent.further,the internal examination and approval procedure will be added to the normal procedure of the original sentencing recommendation.In view of this,taking different normative documents and practices in different places as the object of analysis,and based on the coordination of the authorization system and judicial laws,the program proposed is that if a special case is undertaken by a prosecutor,after the prosecutor formulates a sentencing recommendation,it needs to be submitted to the chief procurator for decision,if the chief procurator wants to change the sentencing recommendation drawn up by the prosecutor,it must be based on personal review.At the same time,comprehensively consider the risk prevention and control,litigation economy and the main body of power and other factors to regulate the power of sentencing recommendation adjustment reasonably.Chapter Ⅴ studies the effect of sentencing recommendation in the case of admission of guilt and acceptance of punishment.Sentencing recommendation has become the core content of the leniency system of admission of guilt and acceptance of punishment because of its special effect.In fact,the effect of sentencing recommendation in the case of admission of guilt and acceptance of punishment is the different binding force on the three parties of prosecution,defense and trial.The key to clarify these binding forces is to correctly understand the legitimate source of the effectiveness of sentencing recommendation.From the perspective of normative analysis,the legitimate sources of these effects mainly include three aspects: "abiding by the legal duty of lenient punishment","fulfilling the agreement agreed by prosecution and defense" and "safeguarding the judicial public trust of public organs".And it presents different combinations because of different subjects.The accused is mainly responsible for performing the acceptance agreement,that is,the accused shall not go back on the facts and charges admitted,the accepted sentencing recommendation and the agreed trial procedure after signing the agreement,but "no backing out" does not mean that the accused cannot exercise the right of remorse arbitrarily,it is a kind of binding force at the level of contract.In principle,the procuratorial organ cannot change or withdraw the sentencing recommendation unless the sentencing recommendation is obviously inappropriate or the accused reneges or agrees.This is not only binding on the procuratorial organs at the contractual level,but also binding on the legal level.The most special is the judicial restraint of the sentencing recommendation,including both substantive and procedural binding force,that is,the sentencing recommendation are not obviously inappropriate,the court should adopt the sentencing recommendation,even if the sentencing recommendations are obviously inappropriate,the court must first notify the procuratorial organs to adjust the sentencing recommendations.For the three parties of prosecution and defense,a correct understanding of the effectiveness of sentencing recommendation in the case of admission of guilt and acceptance of punishment is the basis for them to correctly perform obligations and exercise powers(rights).At the same time,these effects of sentencing recommendation have brought about substantial changes in the relationship between prosecution and defense and the relationship between prosecution and prosecution.Among them,the relationship between prosecution and defense tends to cooperate,but the imbalance in the structure of prosecution and defense will make the so-called "agreed results" more biased towards the procuratorial organs,which is not conducive to the formation of a benign cooperative relationship between prosecution and defense.The cooperation in the procuratorial relationship is particularly enhanced,but this cooperation is at the expense of most of the sentencing jurisdiction of the court and conflicts with the principle of trial center.Therefore,from a long-term point of view,the effect of sentencing recommendations on procuratorial organs and the accused can remain unchanged,and the prosecution and defense should strengthen cooperation and communication with each other;sentencing recommendation can make appropriate adjustments to the substantive constraint of judicial organs,that is,unless the judge intervenes in advance,sentencing recommendation is mainly procedural constraint,and the state of relative checks and balances should be maintained under the premise of full cooperation between procurators and laws.