Research On The Right Of Appeal Of The Defendant In The Cases Of Pleading Guilty And Punishment

As an effective measure of the new round of judicial reform,the system of plea guilty and punishing leniency has aroused widespread concern and discussion in academia and practice since its inception.The leniency system of confessing guilt and punishing is promoted and formed by the profound judicial reality in our country.Due to the decline in criminal crimes that seriously endanger the safety of personal and property,and the increase in misdemeanor criminal cases,a leniency system has emerged at the historic moment.The system of confessing guilt and punishing has greatly improved the efficiency of litigation.The defendant has given up part of his litigation rights to obtain the benefits of lenient sentencing.This system has achieved a win-win situation for both prosecution and defense.However,with the in-depth development of the system,the defendant continues to appeal,posing a risk of alienation of the system of confession and punishment.This article uses the China Judgment Document Network to conduct statistics.From 2017 to 2021,the national appeal rate of criminal cases of confessed guilty and punished was 2.7%.The Criminal Procedure Law of our country does not provide for the circumstances of appeals by defendants in plea guilty and punished cases.Only Article 45 of the "Guiding Opinions" issued by the Two High Schools and Three Departments stipulates the second instance procedures for expedited cases.At present,all defendants in pleading guilty and punishing cases have rights-based appeals in accordance with the law.Whether the defendant who pleaded guilty and punished has the right to appeal,academic circles have different opinions.There are four main viewpoints in the academic circle: The first is to cancel the defendant’s right of appeal.The second is the unconditional right of appeal,which is the current unreasonable right of appeal in my country.The third is the conditional right of appeal,which restricts the defendant’s right of appeal.The fourth type is the procedural distinction.The defendant has different application procedures in the first instance and has different rights of appeal.This article believes that the theory of conditional right of appeal should be adopted.Granting the defendant the right to appeal is to correct wrong judgments and realize the relief of the defendant’s rights.However,the appeal of the defendant who pleaded guilty and punished is unique.The defendant and the procuratorate reached an agreement on the sentencing proposal and should have served the sentence and the lawsuit should be closed.In practice,the defendant’s appeal during the appeal period is a violation of the previously signed confession of guilt and punishment.For cases of confessing guilt and punishing,the unreasonable appeal system cannot be applied in accordance with ordinary cases.The appeal system is set up for rights protection and error correction,not for the defendant to seek secondary benefits.This article uses empirical analysis as the research method.Statistical analysis of775 judgment documents appealed by defendants in Shandong Province.From the perspective of the defendant’s reason for appeal,the second-instance judgment result of the defendant’s appeal,etc.,we deeply analyze the true reason for the defendant’s appeal.Empirically examine the current situation of the defendant’s appeal and explore solutions to the defendant’s appeal.Construct an appeal review system to connect with the confession and punishment system.The court of second instance examines the defendant’s application for permission to appeal and decides whether to approve the appeal.The defendant’s grounds for appeal can be divided into four types.The first is to appeal on the grounds of mistakes in fact finding or legal mistakes.The second category of sentencing errors.It can be further subdivided into three types: the original trial court did not consider surrender,meritorious service,etc.;the original trial court sent sentences outside the recommended range of sentencing;purely believed that the sentencing was too heavy.The third is that a new situation emerged during the appeal.Fourth,there are procedural problems in the original court,such as involuntary confession and punishment.The fifth type is technical appeals,which are appeals for the purpose of detention to serve a sentence.This article believes that the defendant can appeal against fact finding and legal errors;the appeal review system shall be applied to the appeals that do not consider surrender and simply think that the sentence is too heavy;for the sentence outside the recommended range of the procuratorate,the defendant is granted Complete appeal right;when new circumstances arise during the appeal period and there are procedural problems,the defendant is also given complete appeal right;technical appeals for detaining sentences,such appeals purely make the court of second instance useless and waste judicial resources,Apply the appeal review system to restrict.The scope of the appellate review system is for cases with a penalty of three years or less.It will not cause major judicial injustice,and it will also enable the system of plea for guilty and punishing leniency to continue to function efficiently in the second-instance procedure.Defendants who pleaded guilty and punished exercised their right of appeal,which also raised the issue of retaliatory protests by the prosecutors.The legal basis for the procuratorial organ to exercise the right to protest lies in the fact that the original trial judgment was indeed wrong.The procuratorate should conduct retaliatory protests on appeals without penalty.The defendants who are in good faith here are dealt with.Such protests lack a legal basis.The retaliatory protests of the procuratorial organs should be regulated.At the same time,it is necessary to improve related supporting measures: first,to thoroughly implement the detention necessity review system;second,to implement a time instruction system for serving sentences in detention;third,to improve the on-duty lawyer system.Through the improvement of three supporting measures,it is hoped that it will be helpful to solve the defendant’s appeal.