Analysis Of The Criminal Reconciliation Procedure In The Perspective Of Law And Economics

The criminal reconciliation procedure emerged in the 1970 s.As an effective criminal dispute resolution mechanism,one after another it has been accepted and employed by a large number of countries and regions.In 2002,procuratorial organs in China took the lead in the practice and innovation of criminal reconciliation,achieving initial success and great results.Articles 277-279 of the Criminal Procedure Law which was revised in 2012 formally established the criminal reconciliation system in the form of legislation.Most of the theoretical research results of criminal reconciliation in Chinese academic circles were produced after 2006,mainly before or after the revision of Criminal Procedure Law in 2012.Especially,most of them were exploring the feasibility and necessity of criminal reconciliation before 2012,and were making normative analysis for the criminal reconciliation procedures in the revised Criminal Procedure Law after 2012.In fact,the attention and research enthusiasm for criminal reconciliation issues have declined year by year since 2012.Relevant research results are not abundant in recent years either.However,the criminal reconciliation process still has various problems in system construction and judicial practice.Nowadays,in the context of the system of leniency based on admission of guilt and acceptance of punishment,it is necessary to change the perspective and re-examine the development of criminal reconciliation procedures in China.This article uses the research methods of case analysis and comparative analysis in the perspective of law and economics.Through the method of case analysis,the author analyzes the application of the criminal reconciliation system in the judicial practice of various handling authorities,especially People’s Court,to observe the advantages and disadvantages of the system more directly,so as to suit one’s methods to the situation and improve the system.Through the method of comparative analysis,the author studies the American plea bargaining system and combines it with China’s existing realities.Its advanced legislation or measures can be selectively referred to and transplanted to improve our country’s criminal reconciliation procedures.This article is divided into five parts:The introduction part briefly introduces the research background and research significance of criminal reconciliation procedure from the perspective of law and economics,and then elaborates the existing literature and research status.What’s more,it summarizes the main content and research methods,and finally points out the innovations and shortcomings.Actually,this part lays the foundation for the subsequent writing.The first chapter is the relevant regulations and theoretical analysis of the criminal reconciliation procedure.After defining the concept of criminal reconciliation,this part introduces the relevant legal provisions of Chinese criminal reconciliation procedure.Based on the evolution of criminal judicature ideology,this article proposes the theoretical basis of criminal reconciliation at the level of law and economics,using the "rational man " assumption,game theory and cost-benefit analysis to analyze the criminal reconciliation procedure,so as to demonstrate the necessity of its existence.The second chapter is the practice status of Chinese criminal reconciliation procedures and the reasons for the problems.Through the introduction of two cases with different judgments in the same case,this part analyzes the current legislation and judicial application of criminal reconciliation procedures in China,and points out that many emerging problems exist in China.For example,the application of criminal reconciliation procedures is limited in scope;The legal consequences of criminal reconciliation procedures are not uniform;The role of public security,procuratorate and court is unclear;The case-handling organs haven’t reviewed the criminal reconciliation agreements comprehensively.In addition,the causes and specific manifestations of the problems are discussed and analyzed from the angle of economics.The third chapter is the comparison between Chinese criminal reconciliation procedure and the American plea bargaining system.In this part,The American plea bargaining system is regarded as a research sample.This article compares it with Chinese criminal reconciliation procedures in terms of economic theory,analyzing not only the similarities in the aspects of game theory and cost-benefit but also the differences in the scope of application,sentencing regulations,participants and their roles,so as to find something that is worth learning from.The fourth chapter is the way to perfect Chinese criminal reconciliation procedure.This part considers the system design of the criminal reconciliation procedure and the existing problems in judicial practice.Moreover,in response to the shortcomings,the value goals of improving the criminal reconciliation procedure is summarized according to the related theory of the law and economics.This part also makes recommendations,such as expanding the scope of application of criminal reconciliation procedure,regulating the legal consequences of criminal reconciliation procedure,clarifying the roles of all parties and making the case-handling organs review the criminal reconciliation agreements more comprehensively,for procedural improvement,making the special criminal procedure more systematic and perfect.