| It has been the common practice for every country to dispose cases with guilty plea using informal trial procedure, which is an important measure to improve efficiency. Simultaneously, how to guarantee the justice of the processing of cases with guilty plea is also the issue to which every country should attach importance. Setting reasonable and scientific process is critical to ensure procedural justice and procedural efficiency.The thesis is composed of the introduction, the text and the conclusion. The introduction includes three parts: Part one is about the definition of guilty plea of the defendants; part two is about summarization of the processing of cases with guilty plea; part three is about the research methods and significance of the thesis. Guilty plea of the defendants means the defendants admit the basic criminal facts or main criminal facts charged. Guilty plea of the defendants is of great significance to which kind of process should be used to deal with the cases. The processing of cases with guilty plea are the different processes that the judicial organs take to deal with the cases of guilty plea. In some countries, guilty plea also includes the confession made by the suspects during investigation. Some cases will not be prosecuted because of the defendants' guilty plea. for example, warning by policemen of Britain, deferred prosecution of the U.S.A, non prosecution with condition of Germany, prosecution hesitation of Japan, composition pénale of France and not to initiate a prosecution of China. These cases do not belong to the sphere of the thesis, for they are ended by not to be prosecuted. Most of cases with guilty pleas are the cases that defendants plead guilty to the charges after the prosecutors initiate the prosecution. There are also a few cases in which the suspects have made a confession during investigation. For example, speedy trial procedure of Germany, procedure de comparution immediate of France, and Giudizio Direttissimo of Italy, etc. The processing of the two kinds of cases are the emphasis of the thesis. There are two kinds of research methods used in the thesis: comparative study and empirical study. By comparing the processing of cases with guilty plea between the common law system and the civil law system, we may get some successful experience used for reference. By reviewing and surveying the processing of cases with guilty plea of the defendants in China, the author has analyzed its virtues and its problems. Many scholars have made a lot of research on the processing of cases with guilty plea and got fruitful result, but it is still necessary to enlarge and widen the research on the theory and judicial practice of the processing of cases with guilty plea. In order to gasper the theoretical basis of the processing of cases with guilty plea, and find out the ways to solve the above-mentioned problems, the author holds the view that it is necessary to make a thorough research on the processing of cases with guilty plea of the defendants.The text is composed of four chapters. Chapter One is about the comparative study of the processing of cases with guilty plea of the defendants. It mainly introduces and analyzes the processing of cases with guilty plea of the defendants between the common law system and the civil law system. After the prosecutor or the grand jury initiates the prosecution, there is the procedure of arraignment. The defendants can make three pleas to the charge: plea of guilty, plea of not guilty, and plea of nolo contendence. Guilty plea of the defendants and the speedy procedures based on the plea has disposed a lot of criminal cases and improved the efficiency explicitly. The speedy procedures includes: penalization procedure based on unconditional guilty plea and plea bargaining. In the civil law system, many countries design diversified processing of cases with guilty plea of the defendants. Italy has set up 5 kinds of processing. Germany has 2 formal processing, in addition, there is also a negotiated justice procedure developed in judicial practice. France has two processes used for disposing cases with guilty plea of the defendants: procedure de comparution immediate and summary trial process. Besides, Japan has set up brief process, summary trial procedure and immediate judgment process. Russia has set up speedy processing of cases with guilty plea in its 2001 Criminal Procedure Act. In order to ensure the lowest degree justice of the processing of cases with guilty plea, countries of the two legal systems all establish the principle of presumption of innocence, and endow the defendants with comprehensive litigious rights, for example, the right against self-incrimination, right to counsel, right of disclosure of evidence and right to choose process. The processing of cases with guilty plea of the two legal systems have their own characteristics, and there are many differences between them.Chapter Two illustrates the theoretical basis of the processing of cases with guilty plea of the defendants. This chapter puts much stress on the theoretical basis, including: Theory of procedural subject, theory of procedural division and theory of mitigated penalty. Theory of procedural subject has discussed the subject and subjectivity, the defendants' subjectivity and its protection. In modern society, the subjectivity of human being materializes in every aspect of social and political life. In criminal procedure, the subjectivity of human being is reflected as the procedural subject status of the defendants and other participators, especially, the defendants should enjoy the status of procedural subject. Theory of procedure division is the measure that many countries adopt to reduce the pressure caused by huge amount of cases. The thesis emphasizes on the procedural division at the stage of trial, the main method is to exclude the cases with guilty plea from the trial, and use summary procedure instead. Procedure division is useful to improve the efficiency and realize justice. Theory of mitigated penalty is derived from the theory of penalty purpose, the purpose of penalty is to prevent crime, but not to punish crime. Judges should discriminate the penalty imposed on different defendants according to the severity, the different degree of social harm caused by crimes, and whether the defendants plead guilty or not. If it is a minor case and puts little harm to the society, the defendant should be given sentence reduction. In this way, the criminal could return to the society as soon as possible. All of these reflect the ideology of mitigated penalty.Chapter Three is about the analysis of the contemporary processing of cases with guilty plea of the defendants in China. This chapter is divided into four sections: First, the evolvement of the processing of cases with guilty plea of the defendants. Before the amendment of the criminal procedure law in 1996, there is no special procedure used to deal with cases with guilty plea, the Criminal Procedure Act of 1996 firstly regulated the summary procedure. In 2003, the Supreme Court and the Supreme People's Procuratorate and the Ministry Of Justice distributed Certain Opinions about the cases of public prosecution applied to summary procedure and Certain Opinions about the cases with guilty plea of the defendants' applied to common procedure, the former one is used to improve the summary procedure, the latter one stipulated another processing of cases with guilty plea of the defendants. In recent years, many judicial organs have begun to take speedy process to deal with the misdemeanor cases, it is the latest development in China. The second section is about the empirical study of processing of cases with guilty plea conducted by the judicial organs of B district in city A of Pearl River Delta. The third section analyzes the problems of the processing of cases with guilty plea: lack of the enough support of pre-trial procedure, the defendants do not enjoy the right against self-incrimination, the guilty plea lacks of fully free will and authenticity, the defendants' status of procedural subject falls short of comprehensive system guarantee, and the judges lacks of full impartiality, etc.Chapter Four is about the reconstruction of the processing of cases with guilty plea of the defendants in China. This chapter is composed of basic ideas, suggestions and basic route of reconstruction, and specific designs of reconstruction. Two ideas should be obeyed in reconstructing the processing of cases with guilty plea of the defendants in China: Firstly, we should guarantee the lowest degree justice of the process; Secondly, we should fully elaborate the efficiency of the process. In order to guarantee the lowest degree justice of the process, we should endow the defendants with comprehensive rights: the right against self-incrimination, right to counsel, right of disclosure of evidence and right to choose process, in doing so, we could ensure the free will of guilty plea and the status of procedural subject of the defendants, and the lowest degree justice of the process Could be guaranteed too. In order to fully elaborate the efficiency of the processing of cases with guilty plea, the sphere of cases applied to summary procedure should be enlarged, we should devised diversified processes of cases with guilty plea of the defendants, the author begins with the introduction and analysis of main suggestions on the reform of the processing of cases with guilty plea, and arrange the route of reform that could be used for reference. With respect to the basic route of reconstruction, At present, the majority of scholars hold the view that the sphere of cases applied to summary procedure should be enlarged, and that the processing of cases with guilty plea should be reconstructed, they have also devised diversified processing to deal with cases with guilty plea, for example, plea bargaining, penal order process, special summary procedure, and summary trial procedure, etc. In regard to the specific design of the processing of cases with guilty plea, the author holds the view that we should respect the situation of our country and base on the need of judicial when we are reconstructing the processing, we should not only use the successful experience of the two legal systems for reference, but also the latest research fruit and the latest development of judicial practice. There are the following measures to reconstruct the processings of cases of guilty plea: Abolish the simplification of common procedure, the summary procedure and the simplification of common procedure should be combined, the reasonable items could be absorbed by the summary procedure; Perfect the summary procedure, enlarge the sphere of cases applied to the summary procedure, in order to enrich the pretrial proceeding of summary procedure, the author adds speedy process for misdemeanor within the summary procedure; In order to dispose the cases of non-imprisonment quickly, the author adds the penal order process. After the reconstruction, there are the following processing of cases with guilty plea of the defendants: One is penal order process, which is applied to the cases that could be sentenced to public surveillance, punishment with a fine alone, exemption from criminal punishment or other necessary punishment. The second is speedy process for misdemeanor, it is just a part of summary procedure, speedy process may apply to the cases of public prosecution, whichmay be lawfully sentenced to fixed-term imprisonment of not more than 5 years, criminal detention, public surveillance or punishment with a fine alone. The third is summary procedure, which may apply to the cases of public prosecution may be lawfully sentenced to fixed-term imprisonment of not more than 10 years, criminal detention, public surveillance or punishment with a fine alone. In addition, it is necessary to build a series of systems to cooperate the processing of cases with guilty plea, these include: endowing the defendants with the right against self-incrimination, perfecting the system of right to counsel and the system of disclosure of evidence.
|
PDF Full Text Request