The Research On Phenomenon Of "Prosecutorial Adjudication" In Guilty Plea Cases

With the reform of criminal justice worldwide,more and more countries have expanded the discretion of prosecutors and adopted alternative or simplified court mechanisms such as non-prosecution for petty crimes,conditional non-prosecution,penal orders,and guilty plea to resolve the criminal cases in which the accused pleads guilty,with prosecutors de facto or de jure assuming the function of adjudicating the substantive outcome of the guilty plea case.Whether in common law or civil law,prosecutors have become “judges before judges” or“quasi-judges”.In China,the phenomenon of “prosecutorial adjudication” has also appeared in the system of non-prosecution for minor crimes,the system of non-prosecution with conditions,and the system of leniency on admission of guilty and acceptance of punishment.As a worldwide judicial trend,how did the “prosecutorial adjudication” in guilty plea cases come into being and develop in the two major legal systems? What are the commonalities and differences of the “prosecutorial adjudication” in guilty plea cases between the two major legal systems? What are the basic models and characteristics of “prosecutorial adjudication”in guilty plea cases? What is its inner essence? And what are the practical characteristics,procedural structure,advantages and risks of “prosecutorial adjudication” in China’s guilty plea cases? All these questions need to be answered objectively by a comprehensive investigation of the face of “prosecutorial adjudication” in guilty plea cases.Therefore,it is particularly important and urgent to study the phenomenon of “prosecutorial adjudication” in guilty plea cases.This paper adopts the analytical methods of comparative research,historical research,empirical research and normative research.On the basis of examining the historical evolution and actual system of “prosecutorial adjudication” in guilty plea cases of the two major legal systems,this paper evaluates the “prosecutorial adjudication” model of guilty plea cases with the help of due process theory,and finally examines in detail the operation and existing problems of the “prosecutorial adjudication” of guilty plea cases in China,and proposes the reform plan to improve the “prosecutorial adjudication” of China’s guilty plea cases.Apart from the introduction,this paper falls into four chapters and contains more than180,000 words,and the main contents of which are as follows:The first chapter investigates the historical evolution of “prosecutorial adjudication” in guilty plea cases from a historical perspective.“prosecutorial adjudication” in guilty plea cases first became a common legal phenomenon in common law countries represented by the United States,and later expanded to civil law countries represented by Germany and the International Criminal Court,and later appeared in guilty plea cases in China,especially admission of guilty and acceptance of punishment cases.First of all,this paper describes the process of the emergence and prosperity of plea bargaining with American law as a model.This paper argues that plea bargaining is a typical “prosecutorial adjudication”,and the reasons for its emergence are at least as follows: one is that prosecutors become representatives of the public interest;the second is that the lawyers of the prosecution and defense lead the trial process;third,the increasingly complex evidence rules and procedural rules make jury trials time-consuming and precision;fourth,the growing caseload and the need for prosecutors to quickly convict;fifth,prosecutors enjoy wide discretionary powers;sixth,the judge has changed from being unwilling to participate in plea bargaining to becoming a loyal partner of plea bargaining;seventh,the accused enjoys a series of rights against the prosecution.Secondly,the reasons for the “prosecutorial adjudication” in guilty plea cases include at least the following factors in civil law countries: first,the procedural rules and evidence rules are becoming more complex and sophisticated;second,it is difficult for limited judicial resources to cope with the ever-increasing number of cases;the third is the decline of the investigating judge system;fourth,some European countries take abandoning or simplifying trial procedures as an important part of promoting national political democratization reform;fifth,some European countries highly respect the US adversarial system and plea bargaining system;the sixth is the need to protect the human rights of victims and defendants.The International Criminal Court adopts plea-bargaining to resolve cases more depending on the reasons of obtaining evidence,speeding up the proceedings,and reducing the cost of litigation.Although the two major legal systems have different reasons for the emergence of “prosecutorial adjudication” in guilty plea cases,the growing number of cases and the increasingly perfect due process mechanism are important motivations for the emergence of “prosecutorial adjudication” in guilty plea cases.The differences in the paths of“prosecutorial adjudication” of guilty plea cases between the two major legal systems worldwide are mainly manifested in the following five aspects: first,the nature and purpose of criminal proceedings are different;second,the object of guilty plea is different from the legal nature;third,the positioning and discretion of prosecutors are different;fourth,the complexity of procedural rules and evidence rules is different;fifth,the scope of cases to which “prosecutorial adjudication” applies is different.The second chapter conducts a comparative study of the phenomenon of “prosecutorial adjudication” in guilty plea cases from the perspective of reality,and summarizes the basic models,characteristics and essence of its existence.The author categorizes the “prosecutorial adjudication” of extraterritorial guilty plea cases into three models: the first is the“prosecutorial adjudication” in the prosecution alternative model,which mainly includes the United States deferred prosecution,public interest non-prosecution,micro-crime non-prosecution system,conditional non-prosecution,mediation system,etc.;the second is“prosecutorial adjudication” in the mode of quick punishment for misdemeanors,which is most typical of criminal punishment orders;the third is “prosecutorial adjudication” under the plea negotiation mode,which mainly includes plea bargaining,pretrial guilty plea,and the application of penalty procedures at the request of the parties.As far as the world is concerned,“prosecutorial adjudication” in guilty plea cases has the following four characteristics: first,the prosecutor has the power to decide the outcome of the case in fact or in law;second,a mutually beneficial and win-win cooperation relationship has been formed between the prosecutor and the accused;the third is that “prosecutorial adjudication” in guilty plea cases either abandons the trial or simplifies the trial;fourth,“prosecutorial adjudication” in guilty plea cases focuses more on the pursuit of litigation efficiency.The essence of “prosecutorial adjudication” in guilty plea cases is a prosecutor-led mode of handling cases.The third chapter analyzes the advantages and disadvantages of “prosecutorial adjudication” in guilty plea cases from the three-dimensional perspective of substantive justice,litigation benefits and human rights protection.The author examines the“prosecutorial adjudication” of guilty plea cases through the theory of substantive justice,procedural efficiency and human rights protection.In terms of substantive justice,because the accused is forced or voluntarily made false confessions,confessions solidify prosecutors’ guilt prejudice,lack strict and regulated discretion and effective judicial supervision,etc.,“prosecutorial adjudication” in guilty plea cases leads to a few wrongful convictions.However,considering that innocent people will not easily confess,prosecutors have a duty of objectivity and impartiality,and prosecutors can use a variety of evidence review methods to find out the truth,“prosecutorial adjudication” in guilty plea cases can basically guarantees the accuracy of fact determination in most cases.In terms of litigation benefits,although“prosecutorial adjudication” increases the cost of errors and save direct litigation costs,“prosecutorial adjudication” ignores “moral costs” and “process benefits”.In terms of human rights protection,“prosecutorial adjudication” can not only preserve the personal dignity of the defendant and the status of the subject of litigation,reduce the burden of litigation and procedural punishment,but also enable him or her to obtain lenient treatment.In addition,“prosecutorial adjudication” in guilty plea cases can also enhance the substantive rights and interests of victims,heal the wounds caused to victims by criminal acts,reduce the procedural burden on litigation participants such as victims and witnesses,and so on.The fourth chapter studies the current situation and reform plan of “prosecutorial adjudication” in guilty plea cases from the perspective of China.The issue of China is the starting point and the final point of this study.The author’s investigation found that China’s guilty plea cases have limited ability to divert the trivial charges and conditional non-prosecution,and lack a swift procedural mechanism for misdemeanors similar to penal orders.In guilty plea cases,the prosecutor actually decides the outcome of the case.China’s system on admission of guilty and acceptance of punishment requires the accused to seek leniency from the government by pleading guilty and accepting punishment,and requires the court to “shall generally” adopt sentencing recommendations in legislation.Therefore,the“prosecutorial adjudication” in China’s guilty plea case is different from the “prosecutorial adjudication” under the extraterritorial plea negotiation model,and is unique.The“prosecutorial adjudication” in the case of admission of guilty and acceptance of punishment has the following six practical characteristics: first,the procuratorial organ unilaterally initiates the procedure of admission of guilty and acceptance of punishment;second,the prosecutor decides the content and form of sentencing recommendations;third,the court should generally adopt the accusation opinion;fourth,the specialization and formalization of court hearings;fifth,sentencing recommendations adjust procedures to restrict sentencing judgments;sixth,procuratorial organs defend the sentencing recommendation with the help of a protest.Therefore,the system of giving leniency for pleading guilty and accepting penalty is based on the mode of “prosecutorial adjudication”.That is to say,the procedure of pleading guilty and accepting penalty is “pre-determined” by the prosecutor and reviewed by the court,forming a new procedure mode of procuratorate and defense cooperation,procuratorate and court cooperation under the lead of prosecution power by means of the requirements of procuratorate “predetermination” and court check.This mode not only has the impetus mechanism of “prosecutorial adjudication” for foreign guilty plea cases,but also is rooted in the practical field of criminal justice in China.It can better ensure that justice is given priority to efficiency,and better fit the traditional authority and the linear litigation structure and avoid the coercion that may arise from the consultation between judge and defense.However,there are also certain potential litigation risks.The mode of “prosecutorial adjudication” is governed by the trial-centered,and it is also for realization of the trial-centered of non-pleading guilty cases.The top priority is to take the mode of “prosecutorial adjudication”seriously,and we should guard against the abuse of prosecutor power by various means of supervision,effectively guarantee the voluntariness of pleading guilty and accepting penalty,and resolve the damage effect of the model for criminal due process in order to avoid the disorder of “prosecutorial adjudication”.However,“prosecutorial adjudication” may result in litigation risks such as abuse of prosecutors’ power,damage to the voluntary nature of plea guilty,jeopardizing the authenticity of guilty plea cases,impairing the rationality of sentencing recommendations,and eliminating the centrality of the trial.The unique design and operating environment of “prosecutorial adjudication” in China’s guilty plea cases are different from those in foreign countries,which determines that China’s “prosecutorial adjudication” in guilty plea cases should not only fully absorb the beneficial experience of“prosecutorial adjudication” from outside the territory,but also pay due attention to the main features of the Judiciary of China’s “prosecutorial adjudication”.In terms of improving the path,the relationship between guilty plea cases and “prosecutorial adjudication” should be clarified in order to build a hierarchical “prosecutorial adjudication” procedure,establish a conditional non-prosecution system for cases of giving leniency for pleading guilty and accepting penalty,expand the non-prosecution system for minor crimes,make written trial expedited,build a negotiation mechanism for prosecution and defense in guilty plea cases,ensure that defendants obtain effective defense rights,and insist that courts exercise their judicial power independently and impartially.In terms of supporting measures,the objective obligations of prosecutors in guilty plea cases should be strengthened,the supervision and restraint of procuratorial power in guilty plea cases should be enhanced,and the specific criteria for lenient sentencing in guilty plea cases should be clarified.