V. Defense Consultation System Feasibility Study

From its birth, the system of plea negotiation has been the focus of dispute in the criminal litigation area because of its huge efficiency and its inherent system limitation. Even if so, the system has been widely used in the world and had profound influences to many countries. Studied and determined from the development trend of criminal litigation in the world, the popularization of equality of accusing party and defender under the subject of human rights support is unstoppable.The biggish difference between the criminal litigation systems of the Anglo-American law system and the continental law system creates the room for improvement during the process of China's criminal litigation reform. At present, with the instant development of China's economy and the further reform, a series of conflicts occurred and influenced the social harmony, including the conflict between the fast growing criminal rate and limited judicial resources. How to solve the problems becomes a real-life task and challenges juridical authorities' resourcefulness. The author tries to sum up the experiences and opinions of different countries, analyze the historical reason of its birth and conditions, find out the operation rule, and discuss the possibility of import the system into China, expecting that provide a solution to the conflicts between efficiency cost and judicial justice.This thesis contains five parts.The first part is the brief introduction of the plea negotiation system.It introduces the definition of plea negotiation system and the difference between "plea negotiation" and "plea bargaining", and further points out the reason why "plea negotiation" is used in this thesis. It also concludes the functions of all the subjects of the plea negotiation system, interprets the essentials, efficiency, and operation model, and introduces the basic content.The second part describes the status quo of plea negotiation system and analyzes its reason of occurring. It quotes the development of the system and analyzes the inevitable reasons and necessary conditions from the aspects of historical reason, real-life background and theory principle.The third part is the related policies and cases in China that similar to plea negotiation and condition analysis of importing the system.Combined with China's judicial practice, this part interprets some criminal policies, such as the policy of "leniency to those who confess their crimes and severity to those who refuse to". It also makes comparison of these polices and systems with the plea negotiation. Based upon the difference analysis, it points out the obstacles of importing this system and the pros and cons of the system itself. It emphasizes the necessity of importing the system in terms of ideas, corruption, and barriers of legal theory.The forth part is the analysis of value orientation of setting up plea negotiation system.It demonstrates that the plea negotiation system is the effective balance of fairness and efficiency. It also explains that the system still maintains the basic structure of due process. From the point of view to built up a harmonious society, this part points out that we should shape the idea of multi-dimension litigation purpose and consolidates the function of stopping dispute. Meanwhile, it argues that plea negotiation system is helpful to realize the criminal penalty's function of punishment, reforming, conciliation and deterring.The fifth part is concerns of setting up plea negotiation system with Chinese characteristics.It suggests three principles: to unify the punishment and the human rights, to combine the improvement of litigation efficiency and the judgment equity, and to restrict the plea bargaining right under the precondition of freely negotiation. It also makes some suggestion on the applicability, condition, content limitation, produce designing, and conditionality.