| The reform of leniency system of guilty plea has established the Chinese-style consultative judicial model,which has produced obvious effects on improving the efficiency of criminal proceedings in China,but there are also subjective crises such as the insufficient legitimacy of leniency negotiation,the voluntary dilemma of guilty plea and the suppression of the accused.The reasons are not only the surface strength gap in prosecution and defense,but also the deep system positioning from the perspective of judicial organs.The root is the pragmatic philosophy foundation,how to recognize the practical value of leniency negotiation and at the same time to carry out subjective control of it is the key to perfect the system of leniency of guilty plea.This paper uses the philosophy of subjectivity to put forward the concept of leniency of subjective negotiation of guilty plea.According to the philosophy of subjectivity,man is not just a simple and low "economic man",but a complex and high "moral man",which is not only inviolate in a negative sense,but also free and selective in a positive sense,which is not only the fundamental sign of character differentiation,but also the ontological basis of practical actions that human can maximize interests.From this perspective,we can see that inquisitionoriented litigation is a typical judicial paradigm that regards the litigant as the object and tool of litigation,adversariant litigation is a judicial paradigm that takes the defense of the litigant as the core idea,and consultative litigation is a judicial paradigm that takes the choice of the litigant as the core idea.In the leniency negotiation of guilty plea,it is the premise and basis to guarantee the defense of the subject’s subjectivity,and the subject’s choice is the further recognition of the subject’s subjectivity by the Criminal Procedure Law,and the two can transform each other under certain conditions.The formation of the subjective negotiation mode is in line with the traditional Chinese thought of governing the country with leniency,the tradition of leniency and punishment,and the traditional spirit of non-litigation.It has absorbed the useful experience of leniency for repentant war criminals and those who confess themselves,and has experienced the practical lessons of a tentative plea bargain.It is mainly embodied in the basic principles such as the adaptation of crime,responsibility and punishment,evidence adjudication and the core systems such as "limited opening consultation","trial reservation consultation","right relief consultation" and "procedural consultation" constructed by legislation for judicial consultation.The extraterritorial consultative judicial system has also been enriched in the process of subjectivity control.In the negotiation of guilty pleas in Britain and the United States,judges are required to have a certain factual basis,while France and Germany are not allowed to negotiate and compromise on factual issues.The discretion of prosecutors is limited,such as the prohibition of retaliatory prosecution(USA);The role of judges in consultation has been strengthened,for example,Newton’s hearing is initiated when facts are in doubt(UK),and judge-led consultation process(Germany);More lenient sentencing has been legalized,such as the special Guidelines on Mitigating Guilty Pleas(UK)and strict adherence to the basic principles of criminal law(Germany).T he status and role of lawyers have received greater attention;The judge is obliged to persuade the defendant to give up the appeal(Germany),and the prosecution and defense parties are obliged to fulfill the obligation of commitment.Foreign subject consultative system has some significance for improving our country’s leniency negotiation of guilty plea.In view of the subjectivity crisis of the accused in leniency negotiation,we should improve the defense system,prosecution and defense negotiation and withdrawal of guilty plea.First,improve effective defense,introduce ineffective defense mechanism,and assist the accused to make effective free choices through lawyers’ due diligence defense.Establish a mode of cooperative defense,respect the "centrality","protagonist" and self-determination of the accused in defense,and give play to the defense dominance of lawyers based on professional knowledge and practice experience.The basic positioning of duty lawyer as defense assistance should be clearly defined,and the three-dimensional defense system of duty lawyer "full-cover defense",legal aid lawyer "special defense",and entrusted lawyer "ideal defense" should be constructed to ensure that the accused can obtain full and all-round lawyer defense.Second,to enhance the effectiveness of prosecution and defense negotiations,prosecutors should fully inform and fully explain the rights of the accused,and fully reveal the evidence;In order to listen to opinions,the preprocedure of defense negotiation is set up,and the mechanism of negotiation generation and "negotiation before adjustment" of sentencing suggestions is established.Build a backstop negotiation mechanism for prosecutorial cases in which prosecutors violate objective obligations and set up conditional exclusion rules for unrevealed evidence.The consequence of lenient deprivation is set for the guilty plea of the accused based on voluntary expansion.Third,improve the withdrawal system of guilty plea.For victims who withdraw their consent,the leniency system of guilty plea should be applied while the leniency range of the person prosecuted should be reduced.According to the reasons for the withdrawal and the different stages of litigation,administrative correction,renegotiation,adjustment of sentencing suggestions and other countermeasures are selected.The person prosecuted has the right to withdraw with reason,but judicial measures should be set up for his willful withdrawal,depriving him of the opportunity to get leniency in the first instance,and breaking the restriction of no additional punishment in the second instance to cancel the remission part of his sentence. |
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