Research On Sentencing Compensation Mechanism Of Procedural Violation

The illegal procedure in criminal procedure not only damages the value of procedural justice,but also infringes the rights of the accused.In order to effectively regulate procedural violations,it is not only necessary to resume the litigation procedure,but also to strengthen the relief of the accused.But in the current procedural sanction system,there is a risk that this problem will be ignored.At present,in the practice of our country and many other countries and regions,in view of the more serious procedural violations,the state acknowledges that the persons prosecuted have been treated unfairly in the criminal process,and adopts the mode of leniency and mitigation of penalties to provide relief for them.Although this kind of sentencing compensation pointing to procedural violations has functional advantages,it is facing great controversy in judicial practice and system design.At present,the academic circle has not given sufficient theoretical response,which is in urgent need of in-depth review.The writing of the article is divided into five parts,as a whole adhere to the problem oriented as the writing idea.The first part,points out the problems existing in the practice of sentencing compensation mechanism.It mainly includes four aspects: the doubt of legitimacy,the ambiguity of system positioning,the ambiguity of application conditions and scope,and the effective restraint of the discretion of sentencing compensation.The second part is to face the theoretical controversy from the perspective of comparative law.After combining the viewpoints of criminal substantive law,procedural law and tort liability law,this paper makes theoretical interpretation and demonstration on the legitimacy basis of the sentencing compensation mechanism,and comprehensively holds that from the perspective of tort law,it points out that serious procedural violations have the nature of national torts,and only through the benefit compensation in sentencing can the accused be fully remedied.The legitimacy of sentencing compensation mechanism can also be better demonstrated.The third part,analyzes the relationship between the sentencing compensation mechanism and other regulation methods of procedural illegality.By horizontal comparison with other methods,the functional advantages and disadvantages of the sentencing compensation mechanism can be found,and the hierarchical relationship between the sentencing compensation mechanism and professional punishment,money compensation,exclusion rules,litigation termination and other systems is proposed and demonstrated.It is also believed that the sentencing compensation mechanism should complement and support each other with the procedural sanction system on the whole.To better realize the goal of "equal emphasis on sanctions and relief".The fourth part,through the method of empirical analysis and combined with the comparison method,sums up the applicable conditions and scope of the sentencing compensation mechanism and the principles to be followed.It is clear that there are two ways of sentencing compensation: judge’s active choice and application,and under the principle of conforming to the necessity and effectiveness,the infringement of rights in the proceedings can be alleviated.The fifth part,puts forward the improvement and optimization path of the sentencing compensation system.In the application of the compensation mechanism for sentencing,we need to review the necessity of compensation,always maintain prudence in sentencing compensation,and need to reasonably distribute the burden of proof.The prosecuted need to provide preliminary materials when applying to start this mechanism,and more clearly define the reasonable restraint mode of the power of sentencing compensation,which will lay the foundation for the good application of the compensation mechanism in our country.