On The Restricted Exercise Of The Right Of Appeal In The Case Of Guilty Plea And Punishment

Since the pilot of the leniency system of guilty plea and punishment,the problem of the defendant’s improper exercise of the right of appeal in the case of guilty plea and punishment has attracted the attention of the practical and theoretical circles.Many people advocate limiting the defendant’s right of appeal in the case of guilty plea and punishment on the main reason of improving the litigation efficiency.Improving litigation efficiency is indeed an important goal of the leniency system of guilty plea and punishment,but the value of efficiency can not be used as the main reason to limit the defendant’s right to appeal in guilty plea and punishment cases.In fact,the exercise of the defendant’s right of appeal in the case of guilty plea and punishment is related to the transformation from adversarial justice to consultative justice in China.The leniency system of confession and punishment in China is a sentencing consultation system led by prosecutors,which belongs to one of the manifestations of consultative justice.The main factor that really restricts the defendant’s exercise of the right of appeal in consultative justice is the "agreement" formed by negotiation,because the negotiation process and effectiveness determination of "agreement" reflect the defendant’s substantive participation to a certain extent,especially the defendant can have a substantive impact on the handling results of the case through communication and negotiation.Therefore,for the defendant,he should maintain a certain respect for this "agreement",which means that the defendant’s right of appeal needs to be limited in the appeal system.From the perspective of academic theory and the adjustment practice of the right of appeal in extraterritorial countries,the extent to which the defendant’s right of appeal should be limited in consultative justice needs to be determined according to the negotiation process of the formation of "agreement" and the degree of guarantee of effectiveness recognition in different countries.In detail,it is determined according to the guarantee degree of procedural justice in the process of pre-trial negotiation,such as the guarantee degree of voluntary confession,the guarantee degree of effective defense of lawyers,the guarantee degree of substantive participation in specific negotiation activities and the substantive examination degree of "consensual" authenticity and voluntariness in court.Specifically,in China,the imbalance between prosecution and defense and the lack of substantiation of court trial in the leniency system of guilty plea and punishment are more serious,and the guarantee for the negotiation process of "agreement" is not sufficient,but the guarantee for the determination of the effectiveness of "agreement" of sentencing is relatively high.In practice,the more prominent problem is that after the defendant obtained the sentencing preference reached through negotiation in the first instance,he only appealed on the grounds of excessive sentencing.The author believes that,in view of the insufficient guarantee for the negotiation process of "agreement" and the substantive review of court trial in China,it is not appropriate to make too many and heavy restrictions on the defendant’s exercise of the right of appeal in the case of guilty plea and punishment.At this stage,we can learn from the provisions of foreign due appeal in the plea and punishment cases tried by the quick adjudication procedure,introduce the appeal permission system,and the superior court will conduct a preliminary review on the defendant’s appeal reasons in the plea and punishment cases,focusing on filtering out a large number of unjustified appeals,so as to leave those appeals that really need the careful review of the court of second instance.The formal second instance procedure changes the original practice of comprehensive review regardless of severity,and focuses on the controversial issues reflected by the defendant’s reasons for appeal;The examination form of the second instance shall be based on the principle of written trial,and a court session may be held when necessary.