Research On Sentencing Consultation Mechanism Under The Leniency System Of Pleading Guilty And Accepting Punishment

With the in-depth promotion of the lenient system of pleading guilty and accepting punishment in judicial practice,especially the sentencing consultation as the key link,the operation of sentencing consultation reflects the endogenous force of Chinese leniency system of pleading guilty and accepting punishment,which is closely related to the deepening and breakthrough of the system.This paper makes a comprehensive discussion on the sentencing consultation mechanism in China.Firstly,it combs its origin,development context and academic differences in terms of basic theory.At the same time,it further expounds the theoretical basis of its consultative judicial theory,procedural justice theory and the theory of equality between prosecution and defense.Secondly,this paper focuses on the following problems exposed: firstly,the provisions on the substantive and procedural aspects of sentencing consultation in normative documents are insufficient;Secondly,lack of interaction between the prosecution and the defense in sentencing consultation;Thirdly,the dispute over the accuracy of the results of sentencing consultation has exacerbated the tension between the power of public prosecution and the power of trial;Finally,there is a shift in the role of lawyers on duty in sentencing negotiation,and practical obstacles in providing legal help.Through the above phenomenon of Chinese sentencing consultation,we can dig out the profound influence and practical restraint of the criminal procedure system behind it.It includes the natural inequality between prosecution and defense under the doctrine of criminal procedure authority,which has a profound impact on the interaction between prosecution and defense in sentencing negotiation;And the restriction of the principle of division of responsibilities,mutual cooperation and mutual restriction of the three organs of public security,procuratorial and judicial power in the power distribution of sentencing consultation established by Chinese law;At the same time,the leniency system of confession and punishment in China is in the dislocation of functional logic and consultative logic,as well as the practical obstacles to the substantiation of legal help by lawyers on duty,which deeply reveals the reasons for the operation of the current sentencing consultation mechanism in China.Therefore,we should optimize our sentencing consultation mechanism:firstly,improve the legal norms of sentencing consultation,and strive to strengthen the formulation of substantive content and procedural norms;The second is to pay attention to balancing the power allocation of the procuratorial organs and the judicial organs for sentencing recommendations,and focus on refining and determining the scope of application of sentencing recommendations and exploring the form of tripartite participation in sentencing consultation,prosecution,defense and trial,in order to build a more scientific and reasonable system guarantee.The third is to strengthen the protection of the rights of the accused,which is explored from two aspects:strengthening the effectiveness of the help of lawyers on duty and paying attention to the external supervision of sentencing consultation.