Research On The China Perfection Of Sentencing Commitment System

Since the 18 th Communist Party Congress,Central Committee of the Communist Party of China Increase anti-corruption efforts and set off a new round of anti-corruption climax.To this end,China has launched a series of "International Pursuit" special actions such as "Skynet Action".As of November 30,2018,China has recovered 4,997 fleeing personnel from more than 120 countries and regions,including 1015 members of Communist Party of China and national staff,including 56 " 100 peoples in Red Notice".Due to differences in the legal system between countries and the culture of the rule of law,in order to promote the smooth conduct of international extradition,criminal justice assistance and repatriation,the requesting State needs to make a sentencing commitment to the requested State at the appropriate time.The sentencing commitment has played an irreplaceable role in the series of "international pursuit" special actions carried out in China,which has promoted the smooth development of China’s international criminal justice cooperation.However,China’s sentencing commitment system is not perfect,but also highlights some problems in legislation and practice.The remediation of these problems is crucial to perfecting China’s sentencing commitment system.In addition to the introduction and abstract,this article is divided into four parts:The first part mainly summarizes the system of sentencing commitment in China.First of all,the views of domestic academic circles are not uniform for the concept and nature of sentencing commitments.The author believes that the sentencing commitment is the unity of diplomatic commitment and judicial commitment.It means that in the international extradition,repatriation and criminal judicial assistance,the requesting country,according to the request of the requested country,after the decision of the highest judicial organ in the country,the corresponding organ to the requested country The delivery is not sentenced or not executed,and other mitigation guarantees.Secondly,the content of China’s sentencing commitments should include the following points: First,the preconditions for the application of the promise,that is,the sentencing commitment can not damage the sovereignty,interests,security and public interests of the country,and the consent of the requested country to extradite,repatriate,and provide international The criminal justice assistance is conditional;the second is that the decision-making body of the sentencing commitment is the Supreme People’s Court,and the external subjects include the Ministry of Foreign Affairs and the Ministry of Justice;the third is that the sentencing commitment is accepted and approved by the requested country before it can take effect in the requested country;After the successful extradition,repatriation and criminal justice assistance,the relevant domestic authorities of the requesting country must abide by the previous sentencing commitments.Fourth,the types of sentencing commitments should include the commitment not to impose the death penalty,the commitment not to execute the death penalty,and other types of mitigation commitments.Finally,the scope of application of our sentencing commitments should include extradition,repatriation and criminal justice assistance between countries.The second part focuses on the in-depth analysis and discussion of the establishment value and legal basis of the existence of the sentencing commitment system in China.First of all,China’s sentencing commitment system has a profound theoretical foundation to support it.The realization of the general purpose of criminal law and the requirement of equality of criminal law provide theoretical support for the necessity of the existence of China’s sentencing commitment system.Secondly,the sentencing commitment system plays an important role in realizing the equality of China’s criminal law and guaranteeing the authority of China’s Criminal Law.Thirdly,China’s sentencing commitment system,such as the Extradition Law,the International Criminal Judicial Assistance Act and other domestic laws and the treaties or conventions signed or ratified by China as the legal basis,its rationality is self-evident.The third part mainly analyzes and summarizes the imperfect legislation in China’s sentencing commitment system and the irregularities in judicial practice.On the one hand,the domestic legislation on sentencing commitment system is not perfect: First,the “magnitude” of sentencing commitment has not been clearly defined by law;second,the mechanism for supervision and implementation of sentencing commitment is lacking;third,there is a lack of procedural provisions for sentencing commitment legislation,the initiation and decision of sentencing commitment,etc.The key procedures lack detailed regulations.On the other hand,there are irregularities in the application of justice: First,the sentencing commitments made during the repatriation process are unfounded in the law;second,the sentencing commitments are not included in the referee’s documents as the basis for the judgment,so that the implementation of the sentencing commitments is not in form.To reflect;the third is that some of the "sentencing commitments" are not in accordance with the rules.The fourth part focuses on the improvement suggestions for the operability of the problem of the sentencing commitment in China.In view of the problems existing in the legislative and judicial application of the sentencing commitment system in China,it can be lacked by improving relevant legislation and standardizing judicial application.Firstly,formulate detailed rules for the implementation of China’s sentencing commitment system and improve domestic legislation on China’s sentencing commitment system.:First,the "magnitude" of the sentencing commitment should be limited,so that the "magnitude" of the external sentencing commitment can be legalized;The second is to introduce the "protest" mechanism of the People’s Procuratorate,give full play to the legal supervision function of the People’s Procuratorate,and ensure the implementation of the sentencing commitment in the whole process of domestic litigation;Third,it is recommended to refine the procedural provisions of the sentencing commitment system,clarify the procedures for the initiation and decision of the sentencing commitments;fourth,it is possible to “legalize” the sentencing commitments in repatriation,and provide for the reference to the Extradition Law in the repatriation.The implementation of the International Criminal Judicial Assistance Act makes it possible to rely on the sentencing commitments made during the repatriation process.Secondly,standardize the judicial application of the sentencing commitment in China: First,the sentencing commitment is used as the basis for the judgment to be written into the judgment document,so that the sentencing commitment is integrated into the judgment part of the judgment document,and the domestic binding force of the sentencing commitment is embodied in the form;secondly,the sentencing is strictly imposed according to law.Commitment to avoid the occurrence of cases of sentencing commitments in violation of legal procedures.