A Study On The Issue Of Not Adopting Recommendations For Determining Sentencing

As a way to realize the right to seek punishment,sentencing suggestion has its special value.With the advancement of the system of leniency for guilty pleas,the number of criminal cases applicable to this system has increased greatly,and the proposed rate and adoption rates of determining punishment and sentencing suggestions have also been continuously improved.Because the suggestion of determining the punishment and sentencing is put forward in the form of "points" and has the strong effect of "generally should be adopted" to restrain the judge,the suggestion of determining the punishment and sentencing has become one of the focus of attention and controversy in the academic and practical circles.At present,the empirical research on the determination of sentencing recommendations mostly focuses on the cases in which the court adopts the sentencing recommendations as the analysis samples,and there is no need to pay attention to the deep theoretical and practical reasons behind the cases in which the court does not adopt the sentencing recommendations.This paper is divided into four parts: The first part is to determine the current situation of not adopting the recommendation of punishment and sentencing.By choosing the job location P,pleaded guilty to forfeit their case applicable to determine the punishment sentencing suggestion in case,to tease out the court does not accept determine punishment sentencing suggestion case,through the empirical,on the one hand,the general characteristics of the analysis does not accept determine punishment sentencing suggestion found that does not accept the proportion of low concentration,charges,focused on the general criminal cases,minor adjustment,etc.,on the other hand analysis is not main is adopted to determine the punishment sentencing recommendations: improper sentencing suggestion,facts and sentencing plot identifying inconsistencies,penalty execution way is inconsistent.The second part is the analysis of the reasons why the recommendation of punishment and sentencing is not adopted.On the basis of empirical study,the paper analyzes the theoretical and practical reasons behind it.One is to determine the sentencing proposal to promote the concept of deviation.The main problems are the strong promotion of the procuratorate and the unreasonable evaluation index of alienation,the insufficient accumulation of the concept and ability of the procurator to transform the practice,and the insufficient acceptance of the suggestion of determining the punishment and sentencing by the judge.Second,the fact basis of the proposed determination of punishment and sentencing is uncertain before trial,mainly reflected in the reserved space is not enough to adapt to the new sentencing circumstances,the facts and sentencing circumstances based on are not final,and it is difficult to assess the personal danger.Third,there are differences in the understanding and application of the law.Mainly reflected in the lack of cohesion with the criminal law and sentencing guidelines,there is improper understanding of the relationship between the right to seek punishment and the right of discretion,and the obvious improper cognitive understanding is different.Four is to determine the sentencing proposal consultation is not sufficient.It is mainly reflected in the lack of equality and openness of negotiation.The third part is the discussion of the precise path of sentencing advice.On the basis of the above empirical analysis and reason analysis,the countermeasures are put forward.One is to deal with the relationship between the "leading" of the procuratorate and the "center" of the trial;Second,a reasonable positioning to determine the sentencing recommendations.Scientific assessment should be carried out to improve the ability of prosecutors to put forward and reason sentencing suggestions and strengthen the recognition of judges to determine the sentencing suggestions.Third,we will improve the basis for making sentencing recommendations precise.Defining the entity basis for leniency of punishment for pleading guilty,jointly formulating sentencing guidance,and clearly determining the adjustment procedure of the proposed sentencing.The fourth is to optimize the application of sentencing recommendations.Depending on the circumstances of the correct application of the proposal to determine the punishment and sentencing,pay attention to the additional punishment and the penalty execution of the consideration.Fifth,improve the adequacy of consultation on sentencing proposals.