Researches On The Withdrawal Of Guilty Plea And Relief Mechanism

With the pilot work of the system of leniency on admission of guilty and acceptance of punishment further expand,all kinds of program designs and system guarantees are getting better and better,but there are still many details that deserve further study.In the cases of admission of guilty and acceptance of punishment,the prosecution and the defense need to sign a guilty plea agreement,the authenticity of the agreement and the voluntary review of guilty pleas,some attention has been paid,but the treatment and remedies of withdrawal of guilty plea have not been given due attention.Based on the uncertainty of litigation factors and the instability of interest demands,it is unavoidable that the accused applies for withdrawing the plea agreement.The withdrawal of guilty plea should be a right to the accused,which has basically been recognized by scholars,but there is no concrete measure to implement the right.At present,China has not yet established a normalized and institutionalized withdrawal mechanism,which leads to confusion in handling and remedy of withdrawal of guilty plea,and that model lacks unified regulation and the remedial measures very little,therefore,it is necessary to be based on the national conditions of our country and study the related issues related to the withdrawal of guilty plea.The thesis is divided into four parts: introduction,text,conclusion and thanks.The text is composed of six parts.The introduction makes it clear that should pay attention to the right of withdrawal of guilty plea and its reasons.This paper generalizes the theory and practice of withdrawal of guilty plea and puts forward the existing problems of withdrawal procedure,so as to make it clear that it is necessary to improve the mechanism of treatment and remedies.The main body of the text is summarized as follows:The first part mainly introduces the basic theory of withdrawal procedure,based on the angle of withdrawal,the confession should include the recognition of alleged facts and charges,and the acceptance of punishment is mainly to identify the punishment result made by the judiciary,not including the objection to the applicable procedure.In different stages of litigation,the performance of withdrawal procedure has its own characteristics.It mainly includes objections to sentencing,charges,and criminal facts.The second part draws on the extraterritorial system,introduces the withdrawal procedure of guilty plea in common law system and dissenting systems of plea cases in civillaw countries,focus on the analysis of ways,reasons and remedies of the withdrawal,and summarizes the convergence of the different litigation modes: First,all countries pay attention to guarantee the expression of the right of withdrawal,and two is to make certain restrictions on the right of withdrawal in different circumstances.The third part combed the existing norms related to withdrawal procedure,and proposed that due to the innovation and uniqueness of the system of leniency on admission of guilty and acceptance of punishment,the existing regulations have not been able to match the practice of guilty plea,and need further refinement and improvement of the relevant provisions of plea guilty.Then introduces the provisions relating to withdrawal procedure in the pilot areas,and introduces the provisions in the pilot area for the withdrawal of the guilty plea and the treatment of the evidence after the withdrawal,which provides experience for further improvement of the system.The fourth part introduces the practice of withdrawal of guilty plea.First of all,from the realistic case,we can understand the general process of the case and the treatment of the facts and the evidence by the judge after the defendant’s withdrawal.Secondly,starting from the details of withdrawal of guilty plea,we will learn about the numbers and time limitation of withdrawal,and specific controversial issues in appeals at different litigation stages.The fifth part mainly combines the practice and relevant provisions of admission of guilty and acceptance of punishment,and puts forward the existing problems of withdrawal procedure and remedies.These issues mainly include: First,at present,the procedures for withdrawal of guilty pleas have yet to be improved,whether it is possible to exercise the right of withdrawal and the time,reason,and method of withdrawal are not stipulated;Second,the effectiveness of the plea agreement after withdrawal remains to be clarified,and judicial practice tends to use the plea agreement as a defendant’s guilty confession after the defendant withdraws;Thirdly,in the cases of the application of the quick judging procedure,after the defendant withdraws,there is no stipulation on how to convert it into a summary procedure.In practice,the discretion of the judge is required.this also leads to the inconsistency of the procedure conversion;Fourth,at present,the “duty based model” existing in our country’s practice tends to regard the withdrawal of the accused as “the bad attitude of confession” and“no cooperation”.and even if the defendant confessed to a crime,it would reduce the margin of “leniency”,and in the court’s judgment,the reasoning of “the bad attitude of confession” is general,which leads to the deviation of determining the attitude of guilty plea.Fifth,in thefirst instance,the defendant pleaded guilty,and whether he could exercise the right of withdrawal after judgment was still controversial in theory,and whether the withdrawal right needs to be restricted and how to limit it in this case also needs to be clarified.Sixth,in the cases of admission of guilty and acceptance of punishment,the protection of voluntary can reduce post-event withdrawals.However,there has not yet been a complete set of voluntary review rules,coupled with limited counsel help,resulting in an increase in the withdrawal of cases.and after the withdrawal,there is a lack of review of the withdrawal and supervision mechanism.The sixth part,by drawing on the extraterritorial and practical experience,we should improve the mechanism of treatments and remedies of withdrawal procedure.Specific suggestions include: First,we should draw lessons from the extraterritorial regulations,construct a withdrawal procedure that is in line with the current situation of China,and theoretically conclude the main body,reason,time and the way,effect and remedy of withdrawal.Second,we should clearly stipulate that the plea agreement is the “contract”reached by the prosecution and the defendant.After the withdrawal of the defendant,it cannot be used as evidence against the defendant,so that the defendant has a stable psychological expectation for the plea agreement.Third,in accordance with the two different situations of guilty plea,it is necessary to build different procedures transformation mechanism to form an orderly connection between quick judging procedure,summary procedure and ordinary procedure.Fourth,we should establish a “rights based mode”.It is clear that withdrawal is the right of the accused.After withdrawal,we can not increase the penalties because of the bad attitude of confession,nor can we reduce the margin of leniency when the crime is withdrawn,and assist the supporting measures to implement the right.Fifth,in the cases of admission of guilty and acceptance of punishment,the right of appeal should be retained,and the paper advocates limiting the practice of "technical appeals" by setting up a filtering review mechanism with appeal grounds;Sixth,step up the review and supervision of voluntary and withdrawal procedure.