A Study Of Sentencing Suggestion In Leniency System Of Guilty Plea

Greater pleaded guilty to forfeit their system of sentencing suggestion is purpose of the prosecuting and defending parties,provide a reference for court final sentencing judges,also has the judicial credibility,embodies the our country the criminal policy of tempering justice with mercy,conducive to the implementation of the case and simplified shunt,but also to the stability of sentencing activity standardization and litigation.Procuratorial organs of sentencing suggestion to connect the accused person voluntary confession forfeit and court sentencing judges,unlike previous sentencing recommendations,pleaded guilty to forfeit their sentencing suggestion in the case of prosecutors,the accused person,the courts have certain binding,sentencing recommendations for the procuratorial organ,the court shall generally be adopted,in judicial practice and legislation,How to grasp the effectiveness of sentencing suggestion and how to understand "generally should be adopted" "obviously improper" is the basis of correctly applying the system of guilty plea.The sentencing recommendation is binding on the court,but does not change the court’s ultimate discretion.In the course of forming,there are two different forms of sentencing suggestions in the case of leniency of guilty plea,one is the recommendation of definite sentencing,the other is the recommendation of amplitude sentencing.There are controversies in academic circles about the legitimacy and operability of the sentencing suggestions put forward by the procuratorial organ.In practice,some judges also conflict with the application of the sentencing suggestions.In principle,the procuratorial organ shall not change the sentencing proposal without authorization.If the court considers that there are problems in the sentencing proposal reached by both parties after review and requires modification or adjustment,the court shall perform the prior procedure of notification,and the procuratorial organ shall negotiate again with the accused.The effective requirement for the accused to accept the sentencing proposal cannot be separated from the legality,and the whole process of guilty plea must be carried out under the legal framework.Although the sentencing proposal is the expression of the will of both the prosecution and the defense,the procuratorial organ plays a leading role in the formation of the sentencing proposal,and it is easy to have the problem of over dominance in this process.At the same time,due to the reason of the accused,their negotiation ability is low,the leading procuratorial organ will suppress the accused’s subjectivity,compress their independent space for negotiation,damage the legitimate rights and interests of the accused.In addition,in the application of the leniency system of guilty plea,the procuratorial organ’s sentencing suggestion power and the court’s sentencing right conflict,mainly because the validity of sentencing suggestion boundary is not clear.Aiming at a series of problems existing in the forming process of sentencing suggestion,it is urgent to seek relevant countermeasures to solve them.To ensure the smooth implementation of leniency system in practice.This article is divided into four parts.Part one focuses on the basic concepts of the plea-bargaining system,such as what is "confession","punishment","leniency";Introduce the characteristics and effectiveness of sentencing suggestion in this system.The second part mainly analyzes the similar systems outside the country,and distinguishes the sentencing proposals in the guilty plea system from the United States’ plea bargaining system and Germany’s guilty plea negotiation system.The third part analyses the mechanisms for generating sentencing recommendations,mainly in the guilty plea reduction system,including the formation,change and adjustment of sentencing recommendations,as well as the effective requirements for the accused to accept the sentencing proposal,including voluntary,authenticity and legitimacy.The fourth part,based on the current legislation of sentencing recommendations in China and the application in practice,puts forward the existing problems in the formation of sentencing recommendations and puts forward the corresponding countermeasures.For example,by guaranteeing the autonomy in the forming process of sentencing suggestions,strengthening the effective participation of lawyers and clarifying the effectiveness of sentencing suggestions and analyze the content of relevant laws and explain their constitutionality to improve the leniency system of guilty plea,in order to put forward some basic opinions for the application of sentencing suggestions in practice.