The Leading Role Of Procuratorial Organs In The System Of Lenient Punishment For Admission Of Guilt And Acceptance Of Punishment

The system of Lenient Punishment for Admission of Guilt and Acceptance of Punishment is one of the forefront issues in China’s criminal justice reform in recent years.With the deepening of the reform,the leading role of procuratorial organs in the system has become increasingly prominent.The leading role of procuratorial organs in the system is mainly manifested in three aspects.First,the leading role of starting the system.Since the public security organs,criminal suspects and defendants do not have the right to start the system of Lenient Punishment for Admission of Guilt and Acceptance of Punishment,and the court’s initiation is also a rare case,the initiation of the system is mainly carried out by the procuratorial organs.Second,the leading of the sentencing consultation procedure.Since both the lawyer on duty and the defender could not effectively participate in the negotiation of sentencing and were not the subject of the negotiation,and the status of suspects and defendants was weak,the procuratorial organs actually occupied an absolute leading position in the negotiation of sentencing.Third,the leading role of sentencing judgment.As a result of the principle of "Adopting Sentencing Recommendations",the sentencing recommendations put forward by the procuratorial organs in the case of confession and punishment have formed substantial constraints on the court,and the procuratorial organs have formed the leading role in the sentencing judgment.Although in theory,the judge does not necessarily adopt the sentencing recommendation of the procuratorial organ in the case of confession and punishment,the discretion in theory can be eliminated by the cost and risk of judgment.In our country,the reason why the the procuratorial leading mode formed in the system of Lenient Punishment for Admission of Guilt and Acceptance of Punishment,has its profound internal constraints.First,the local restriction in the process of legal transplantation.The formation of the system of admitting guilt and accepting punishment for leniency has some reference to the principles,spirit and rules of relevant systems outside China.In the process of legal transplantation,this system is influenced by the traditional litigation legal culture and the litigation concept of authority.As a result,it is difficult to form an equal negotiation mechanism in China.Second,the restriction of authorized pilot judicial reform.The system of leniency of confession and punishment follows the reform mode and reason of the authorized pilot judicial reform.This model is the combination of the legislative and judicial progressivism reform in China in the past,although it has some advantages,but also retains some limitations.First of all,authorized pilot judicial reform will be first authorized by the legislature,the relevant agencies to develop pilot methods,but the rules in the pilot methods are often relatively simple.In the system of Lenient Punishment for Admission of Guilt and Acceptance of Punishment,due to the lack of detailed provisions on how the public security organs should participate in,the public security organs have low enthusiasm in the pilot program,and eventually gradually absent in the guilty plea and punishment leniency system,which makes the procuratorial organs become the leading pre-trial procedure of guilty plea and punishment cases.Secondly,the authorized pilot judicial reform will give considerable respect to the experience of most pilot regions in the pilot process.The legislature affirmed and absorbed the widespread phenomenon of the procuratorial organs’ unilateral leading consultation on sentencing in the pilot,which resulted in the failure to establish the mechanism of equal consultation on prosecution and defense and was not stipulated in laws and normative documents.Finally,the authorized pilot reform will ignore the beneficial experience of exploring a few areas in the pilot.In the pilot reform,a few regions have explored the mechanism of equal consultation on prosecution and defense,but the legislature has not paid much attention to it.Third,the cost and benefit in the system of Lenient Punishment for Admission of Guilt and Acceptance of Punishment.In extraterritorial consultative judicature,there are generally two efficiency gains: reduction of burden of proof and simplification of procedures.However,in China,because it is not allowed to lower the standard of proof for the case of confession and punishment,the scope of negotiation is also limited to the sentencing.In addition,the confession rate of criminal suspects in the investigation stage is very high,leading to the reduction of the burden of proof benefits in China almost no.As for the benefits of procedure simplification,the main performance is the simplification of judgment procedure and the whole procedure of litigation simplification.For the public security organs,the workload of investigation has not decreased,but slightly increased,because there is no benefit of proving the reduced burden.In addition,the benefits of simplified procedures have almost nothing to do with it.As a result,the public security organs have not gained much benefit in litigation efficiency from the system,so they will not be willing to participate in the pilot program,gradually fade out from it,and surrender the power of pre-trial procedure of guilty plea and punishment cases to the procuratorial organs.For the procuratorial organ,is able to obtain a certain procedures simplified efficiency gains,but in the absence of proof burden of earnings,and handle cases confessed forfeit some of new responsibilities,lead to the efficiency of the income gained by the procuratorial organs in order to ensure their own,instinctively to the efficiency of impeding factors-the defense the effective participation of exclusion,eventually led to the equality of sentencing consultation mechanism cannot be formed.For the people’s court,although the principle of "Adopting Sentencing Recommendations" does not force the judge to adopt the sentencing advice,but because not adopting the sentencing advice will pay more judgment costs and have more judgment risks than adopting the sentencing advice,the judge’s discretion in theory has the risk of being eliminated.There are some conflicts between the leading position and role of the procuratorial organs in the system of Lenient Punishment for Admission of Guilt and Acceptance of Punishment and the ongoing reform of the "trial center" litigation system in China.According to the requirement of "trial-center",criminal proceedings should center on trial procedure and court trial.However,in the case of confession and punishment,the focus of the litigation is shifted to the stage of review and prosecution,and because the trial of the case of confession and punishment can not materialize the trial,the criminal litigation in the case of confession and punishment is "prosecutor-centered".However,procuratorial dominance and "procuratorial center" do not have adverse effects on "trial-center".Instead,they are a reasonable way to optimize the allocation of judicial resources.Only by sticking to procuratorial leadership and "procuratorial center" and "trial center" can we achieve better progress.As the formation of procuratorial dominance has a series of constraints mentioned above,this mode undoubtedly has its necessity and rationality,which is the result of natural selection in the construction of China’s deliberative judicial system.But that doesn’t mean the model isn’t flawed.Procuratorial organs play a leading role in guilty plea and punishment cases,which actually means the expansion of procuratorial power in guilty plea and punishment leniency system.There are several risks to this expansion of power.First,the risk of starting a program.The initiation of the system of leniency of guilty plea and punishment led by procuratorial organs may affect the voluntability and legality of guilty plea and punishment of the accused,resulting in the phenomenon of forced guilty plea and punishment.The right to start the system may be delayed in some cases by the procuratorial organs,so that the litigation interest option of the accused who could have obtained leniency through the system of guilty plea and punishment leniency could not be guaranteed.Second,risk in sentencing negotiations.The process of sentencing negotiation led by procuratorial organs may lead to the concealment and deception of criminal suspects in the negotiation process,which not only affects the voluntability and legality of criminal suspects’ confession and punishment,but also may lead to the injustice of the final sentencing.Third,risk in sentencing judgements.If the sentencing proposal of the procuratorial organ can have a decisive influence on the court,it may lead to the court’s inability to effectively restrict the power of sentencing recommendation of the procuratorial organ through examination,thus causing the problem of excessive charges and sentencing deviation in similar cases.In order to avoid the above risks,it is necessary to restrict the power of procuratorial organs in the system of Lenient Punishment for Admission of Guilt and Acceptance of Punishment.First,the transformation of the procuratorial organ’s own philosophy.In order to better play the role of "quasi-judicial judge" in the system,the procuratorial organ should recognize its own position as "legal guardian",change the litigation concept of "taking fighting and punishing crimes as its own responsibility",and strengthen its objective and fair position.Second,improve the participation mechanism of lawyers.The system of presence of defense lawyers during consultations should be established to prevent prosecutors from enticing and deceiving criminal suspects during consultations.We should improve the system of on-duty lawyers and better mobilize on-duty lawyers to participate in the system.Thirdly,the norm and restriction of discretion of sentencing suggestion.It is necessary to formulate a general guideline for sentencing for both courts of the court of law,and rationally use the artificial intelligence sentencing system to restrict the discretion of sentencing recommendation of the procuratorial organs,so as to prevent excessive charges and sentencing deviations in similar cases.Fourth,the perfection of the review mechanism of the court.It is necessary to establish a substantive examination mechanism for voluntary admission of guilt and punishment and for questioning its legality,so as to prevent judges from neglecting the examination of voluntary admission of guilt and punishment and doubtful legality out of their own considerations or natural trust in procuratorial organs.It is necessary to clarify the determination and handling of the guilty plea and punishment cases of "deception" by the court.On the premise of admitting the rationality of appropriate means of "deception",it is forbidden to "cheat" the charges and the number of crimes,and to cheat the suspects and defendants on the suggestion of sentencing.