A Study On The System Of Sentencing Evidence Collection

Nowadays, the standardized reform of sentencing has been implemented and thesentencing procedure is “comparatively independent”. Nonetheless, it’s not delightfulto have100%adoption of sentencing suggestion, because what we face are stillimpassive investigators and public procurators, and helpless defendants. Though thesentencing is independent in procedure, it is still denounced for injustice by publics.Besides, facts of sentencing are inexplicit though the procedure is independent andtransparent. All these are caused by the lack of sentencing evidence, which wouldresult in the formalization of sentencing procedure and the final failure of the reform.The collection of sentencing evidence is related to the juridical justice, and evennationals’ attitude to criminal justice, respect and trust or derogation and contempt.This thesis explores the sentencing evidence collection system, in which, for thebenign development of evidence collection, the public procurator’s objectiveobligation and the judge’s obligation of clarification need to be emphasized so as tointensify the prosecuting party’s obligation of evidence collection, strengthen thejudge’s sentencing investigation and ensure the defense’s rights of investigation andevidence collection. In this way, an ecosphere favorable to sentencing evidencecollection would be created by the collective efforts of the prosecuting party, thedefense and the judiciary.The thesis first discusses the essence of sentencing evidence. It is pointed thatsentencing evidence only could be taken into consideration with the precondition thatsome behavior is a crime while the reflection on it should be consistent with the aimof penalty. Thus, sentencing evidence refers to various information carriers whichreveal the severity of crime and the possibility of recommitting and are taken intoaccount by the court when sentencing defendants. Next, difficulties of evidencecollection and the reasons are analyzed by discussing the current situation of theinvolvement of the three parties (the prosecuting party, the defense and judiciary) in the evidence collection. It is viewed that, the prosecuting party (the prosecutor organand the investigation organ) have limitations in collecting sentencing evidenceinherently, the defense (the defendant and defender) is passive and the trial judge isnegative. Because the criminal trial in China is greatly influence by the“file-transcript-centrism” and “investigation oriented” action form, the investigationorgan and the procurator organ are used to “make heavy conviction and lightsentencing”. The investigation organ often followed the “old route” to collect relevantevidence while neglected to collect sentencing evidence, resulting in the naturaldefects of files and transcripts, and the severe shortage of sentencing evidence. Theprocurator organ doesn’t implement objective obligation. It connives at the neglect ofsentencing evidence collection, lacking not only efficient supervision on thesentencing evidence collection work of the investigation organ, but also strict scrutinyof sentencing evidence when reviewing and making a decision of prosecution. What’sworse, the sentencing defense is not carried out effectively, leading to the defendant’sincapacitation of collecting sentencing evidence. Moreover, judges in China hold anegative attitude towards sentencing evidence, failure to perform the obligation ofclarification. The sentencing evidence collection is done in a vicious circle and thecomparatively independent sentencing procedure turns into the following pattern: theprosecuting party and the defense present, questioning the proof and argue around thesentencing evidence in files and transcripts, understate the survey of sentencing facts.It reflects that the sentencing procedure in China is almost formalized in essence.In the end, the thesis tries to find solutions for the predicament of sentencingevidence collection on the basis of the existing system. First, the investigation organ’sresponsibility of evidence collection needs to be reinforced. Second, the procuratororgan’s objective obligation needs to be implemented. Third, the defender’s right ofinvestigation and evidence collection needs to be guaranteed. Forth, the judge’sobligation of clarification needs to be maintained properly. The three parties’responsibilities of collecting sentencing evidence need to be emphasized through theway of “reinforcing one responsibility, defining two obligations and guaranteeing one right” to impel this “circle of friends” to work together. In this way, a win-wincooperation ecosphere and an interactive system of sentencing evidence collectionsystem will be established, in which responsibilities and rights are well defined.