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The Rise Of Negotiated Justice In The West

Posted on:2011-12-05Degree:DoctorType:Dissertation
Country:ChinaCandidate:J D ZhangFull Text:PDF
GTID:1116330332958480Subject:Legal history
Abstract/Summary:PDF Full Text Request
Negotiated justice is not a familiar notion in our law. At the same time, plea bargaining is familiar to us. In recent years, some research productions appeared in the aspect of plea bargaining system in the West especially in America. Essentially, the American plea bargaining is the earliest negotiated justice pattern that has the greatest effect, and is the most developed one too. Other common law countries mostly transplanted plea bargaining from America. Some continental law countries absorbed some elements of American plea bargaining, and developed their own negotiated pattern. These similar criminal procedural patterns which come into being and develop from American plea bargaining are collectively called negotiated justice. It's a judicial mode to resolve the conviction and punishment of the accused by means of mutual consultation by the prosecutor and the accused during criminal procedure.Since the first half of the 20th century, the enthusiasm of the research of negotiated justice in American legal circle has remained high, whereas the great debate around plea bargaining play a leading role. At the end of the 20th century and the beginning of the 21th century, this topic also became a research focus in other western countries. This topic has already been given sufficient enthusiasm in our legal circle. However, these research productions commonly exist with the following aspects of the major flaws.Firstly, they are concerned about the emphasis on the American plea bargaining, but ignore the research of the civil law countries and other common law countries outside the United States. This situation also led to the examination of the similar system of other counties with the specific perspective of American plea bargaining. Moreover, they are known as plea bargaining regardless of common law and civil law. In nature, there are substantial differences between the negotiated justice in civil law and in common law.Secondly, they are concerned about the emphasis on the research in current American plea bargaining, but ignore the research of the history. We must pay attention to the American plea bargaining in the study of negotiated justice, and we must pay attention to its origin and the development in the study of plea bargaining. If not, we do not have a full and objective understanding of the foundation and operation of the plea bargain system. At the respect of the history of plea bargaining, our studies often tend to be very briefly, and have a lot of knowledge of parrot.Thirdly, they have a large extent on the value of the default of preconceptions in research perspective. The negotiated justice research which has plea bargaining as a center use a win-win situation, consensus, dialogue and so kind words excessively. They pre-set a theoretical foundation rigidly while emphasizing conflict resolution, but ignore the basis of its pragmatic value. Furthermore, they tend to confuse negotiated justice and restorative justice which rise in recent years in the west. The unclearness of the concept of context directly leads to the confusion of system research.The above-mentioned shortcomings in the negotiated justice research in our jurisprudence are precisely the value of the theme of my research. Thereupon, I put the subject on the rise of negotiated justice in the west. This study has two main objectives. One is to try to clarify the origin and the early development of plea bargaining in the United States, and to try to clarify the impact of American plea bargaining in other western countries. The other is to try to restore the true features of the western negotiated justice objectively, and try to pay close attention to the pragmatism of negotiated justice, in which my aim is to peel off the bright halo putting for it by some scholars in China. Besides, as one researcher in China, I do not–and could not - completely divorce from the "Chinese" context, although the theme is limited to the "west", and the relation of negotiated justice and China is not explored in depth. This study has a slight initial mapping at the respect of whether and how negotiated justice fits China.Given the theme of this study,Ⅰmainly take the historical, literature and comparative approach on the research methods. Above all, sinceⅠfocus on the study of history, in addition to focus on the examination of the legal system,Ⅰtouch upon the aspects of social and political background.Ⅰn the choice of the literature,Ⅰextensively refer to the research of foreign scholars.Ⅰn addition, the research of the development context of negotiated justice needs empirical approach, so this study selects a large number of representative cases as an analysis object. There is a defect which is hard to avoid, that it is difficult to obtain many of the early cases materials and other historical data. Consequently,Ⅰhave to take a path of compromise, and draw on the research and a lot of historical clues of some accomplished Anglo-American scholars, such as Mike McConville and Chester L. Mirsky's Jury Trials and Plea Bargaining: A True History (Hart Publishing, 2005.), Mary E. Vogel's The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860 (in Law and Society Review, Vol. 33, 1999.), John H. Langbein's Torture and Plea Bargaining (in University of Chicago Law Review, Vol. 46, 1978.) and Understanding the Short History of Plea Bargaining (in Law and Society Review, Vol. 13, 1979.), Albert W. Alschuler's Plea Bargaining andⅠts History (in Columbia Law Review, Vol. 79, 1979.), Lawrence M. Friedman's Plea Bargaining in Historical Perspective (in Law and Society Review, Vol. 13, 1979.) and Malcolm M. Feeley's Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining (inⅠsrael Law Review, Vol. 31, 1997.), etc. Proceeding from the overall structure, in this paper, macro-comparison is made in negotiated justice between common law and civil law. At the microcosmic aspect,Ⅰalso carry out comparative study on the negotiated justice between the three countries - Germany, France,Ⅰtaly and the United States, and among the countries within the common law.Ⅰn the overall framework,Ⅰuse the narrative structure that has a certain closed property. My study is from the origin and development of American plea bargaining, to the highly-developed negotiated justice in common law, and to the communication and diversified development of negotiated justice in civil law.Ⅰn the end,Ⅰput the target on the highly developed American plea bargaining, and discuss the criticism of negotiated justice from the legal circle and the reform practice from the practitioners. Because some defects of negotiated justice are innate, this end ties the origin of plea bargaining together.Ⅰn the first part of the paper - "introduction",Ⅰexpound the research topic in some details, and the special research significance of the topic in China. Negotiated justice is not a specific criminal justice system, but a kind of description of the common phenomenon of the common law and the civil law. Moreover, the phenomenon it points to is erratic to a large extent.Ⅰt spread rapidly in recent years in the Western world, and showed a remarkable diversity of features.Ⅰn addition, the study of negotiated justice in our legal circles is not deep enough, and there are also a lot of errors.Ⅰt is enough to make negotiated justice into a very attractive research topic. SoⅠalso turn the "introduction" part of the name the temptation of"negotiated justice".Ⅰn the second part"the inchoation of negotiated justice– the origin and the early growing of plea bargaining in the United States",Ⅰdiscuss the origin and the early history of the growing of plea bargaining in the United States in detail. As a plea bargaining form that comes down in one continuous line with the modern one, it should be considered to be originated in the early 19th century. However, American legal circles have many different views about the reasons for the origin.Ⅰn order to reasonably explain why the plea bargain was first produced in the United States rather than the other common law countries, social background factor is the one aspect that cannot be ignored. At that time, the American urban expansion and the flow of new immigrants challenged the emerging city government's management. The moderate state that was not loose and not tight was the basic need to implement the good society control.Ⅰn this context, plea bargaining as a mode that the government gave an appropriate compromise to the accused bred out in legal control.Ⅰn addition, in the issue of the origin and development of plea bargaining as a process,Ⅰchoose a clue in which the attitudes of the courts towards guilty plea change. Plea bargaining which regarded guilty plea as a symbol captured places from bottom to top, and undergone a long process from the underground to the ground. Finally in 1970's, it broke the fortress of the Federal Supreme Court, and established the legitimacy in America generally. During plea bargaining gradually moved toward the legality, the consideration of the efficiency of criminal efficiency is a decisive factor. However, we note a customary understanding which is unsubstantiated.Ⅰn fact, judicial efficiency is not the key factor in the origin of plea bargaining, and there were no serious problems of American judicial efficiency during the process of the origin of plea bargaining. The factor of judicial efficiency had certainly played a dominant role in the development process of plea bargaining. Lastly, toward the developed plea bargaining in America,Ⅰalso discuss the discretion of the prosecutor which is an essential element.The third part is"the development of negotiated justice– the prosperity of plea bargaining in common law".Ⅰn this part,Ⅰselect American, Britain and Canada as a sample and discuss the typical operating mechanism of plea bargaining in common law. Plea bargaining in America can be regarded as the most advanced form of negotiated justice today in the world, and freedom is its basic property. U.S. plea bargaining has varied types, which is mainly derived from the judicial practice in the natural growth. Judges'review in plea bargaining is only formalism, and prosecutors dominate plea bargaining. The voluntariness of the defendant's guilty plea is the most important legitimacy factor of U.S. plea bargaining.Ⅰn Britain, the official discourse of the American-style plea bargaining has taken a secretive attitude. On the one hand, the operation of its criminal justice widely depends on guilty plea. On the other hand, plea bargaining has not been openly accepted and supported, showing a typical nature that is two-sided and divisive.Ⅰn 1970, the purpose of the establishment of Turner Rules was to rationalize the plea bargaining, but it further highlighted the swing of the attitude towards plea bargaining. After Turner Rules carried out, plea bargaining in Britain at the legislative level developed further.Ⅰn Canada, plea bargaining grew significantly in the judicial practice after World WarⅠⅠ. However, it also kept silence in legislation and firstly implemented in practice. A judge is a negative and sensitive role in Canadian plea bargaining process, and cannot be too much to get involved. The voluntariness of the defendant's guilty plea and the prosecutor's dominance of plea bargaining are also controversial issues, which reflects the inherent defects of plea bargaining once again. The voices of the abolition of plea bargaining from common people and the support from the official form a striking contrast.Ⅰn recent years, the authority also conducted many aspects of the implementation of the procedural safeguards to plea bargaining in the context of judicial independence and judicial impartiality.The fourth part is"the diversified development of negotiated justice– the spread of plea bargaining in civil law". The criminal procedural law in every civil law countries does not provide guilty plea system like common law, so the American-style plea bargaining does not come into being there. Based on their respective situations, they develop a variety of negotiated justice patterns. Negotiated justice in Germany mainly includes three forms– conditional case dropping before the charge of prosecutors is made, penal order procedure after the charge of prosecutors is made and bargaining over confessions which occurs in the trial preparation stage and the main trial proceedings. Thereinto, bargaining over confessions is the most similar system to the U.S. plea bargaining.Ⅰn this system, the defendant exchanges the concession sentencing under the specified limits by the judge or the confession of closing certain offenses by the prosecutor with offering confessions during trial proceedings. For a long time, bargaining over confessions have been mainly applicable to a number of major troublesome cases, but in 2009, recent legislation expanded the scope of application of this system.Ⅰn France, negotiated justice mainly includes two forms– composition pénale and comparution sur reconnaissance préalable de culpabilité. The latter one draws on the experience of the American guilty plea system, in which the prosecutors make sentencing recommendations of penalty reducing under the premise of the defendant's confessions, and the judges review and decide on whether to approve the sentencing recommendations.ⅠnⅠtaly, negotiated justice developed in order to improve the efficiency of criminal proceedings, based on the introduction of the adversarial system by the new "Criminal Procedure Code" in 1988.Ⅰt mainly includes giudizio abrreviato and applieazione della pena su richiesta delle parti. The latter one draws on the experience of American plea bargaining, in which the defendant and the prosecutor reach an agreement on sentencing before the formal trial proceedings, and avoid the formal trial with the judge's validation. Overall, negotiated justice of the civil law is far less developed than that of the common law, and the reliance in judicial practice in civil law is also not as high as in common law.Ⅰn addition, negotiated justice in the two law systems also has the essential differences at some aspects, such as the basic purpose of the bargaining, the consequences of the confession, the content of the bargaining and the involvement of the judges and so on.Ⅰn the fifth part"the criticism of negotiated justice– the debate and the reformation of American plea bargaining",Ⅰconcentrate on the debates around American plea bargaining and the reformation of plea bargaining in some American jurisdictions. But among the rest,Ⅰdo not make a simple overview of their research just as a spectator, but present my own tendentiousness as a participant. At the aspect of the positive effects of plea bargaining, plea bargaining supporters try to find some sufficient theoretical basis for it, so they put the perspective on the full attention of the accused and the rationality of the market. However, the full attention of the accused is based on the oblivion of other larger interests. The rationality of the market is based on the conception that put the criminal procedure law and the civil procedure law together, but ignores the pursuit of public interest in the sanction of the criminal acts.Ⅰn addition, the pragmatic perspective that plea bargaining can effectively deal with the stress of caseload can indeed become the main reason for the strong foothold of the U.S. plea bargaining system. At the aspect of the negative effects of plea bargaining, the strongest doubt is the fundamental departure from the goals of justice and the violation of the constitutional rights of the accused.Ⅰn particular, for a long time the latter has been the most powerful offensive weapon of the opponents of plea bargaining. Moreover, there are some significant shortcomings in plea bargaining at some aspects. For example, plea bargaining is not conducive to crime control and crime remedy, and leads to the diversion of the substantial sentencing power from judges to prosecutors, and has so little transparency that make it difficult to be effectively bound.Ⅰn the controversy that has never been end, since 1970's, plea bargaining has began to reform in some jurisdictions. The reformation focused on strengthening the participation of victims, setting a deadline to plea bargaining and narrowing its scope of application. From 1975 to 1993, there had been an attempt to the total ban on plea bargaining in Alaska, but finally it failed. Bench trials in Philadelphia adopted another path besides jury trials and plea bargaining.Ⅰt is one kind of simplified trial procedures, which shows us the new possibility at the aspect of improving the judicial efficiency.The American plea bargaining provides a classic paradigm for negotiated justice in the western countries. Although civil law countries do not– and could not– entirely transplant the American plea bargaining, their own characteristic negotiated justice and the traditional summary procedures go together, and play an important role at the aspect of the guarantee of the judicial efficiency. Conversely, since the development of plea bargaining in common law is in trouble to some extent, whether could it draw on relevant experience in civil law to build simplified trial procedure, should be a valuable research topic.
Keywords/Search Tags:negotiated justice, Anglo-American law system, civil law system
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