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Research On The Leniency System Of Pleading Guilty And Accepting Penalty

Posted on:2020-10-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y BaiFull Text:PDF
GTID:1366330602954105Subject:Science of Law
Abstract/Summary:PDF Full Text Request
Although "confrontation" is the premise of the initiation and progress of criminal proceedings,it should not be the final result pursued by criminal lawsuits.The sharp confrontation between prosecution and defense tends to tilt the litigation interests towards the party with strong litigation resources.Although the dispute is resolved in form,it continues to exist in an implicit way and forms a new social hidden danger.Therefore,criminal lawsuits are antagonistic in means and forms,but they should be conciliatory in social nature.The leniency system of pleading guilty and accepting penalty then arises under this logical premise and objective demand.The leniency system of pleading guilty and accepting penalty should take criminal integration as the theoretical height,take the attention to people as the starting point of value,take the increase of the supply of rights as the main approaching road,take achieving checks and balances of power as an internal motivation,take promoting the prosecution and defense agreement as the external performance,take the optimization of the proceedings as an important carrier,and take the internal coordination of criminal legal system as the guarantee of operation.The formation and perfection of the leniency system of pleading guilty and accepting penalty makes the criminal justice no longer just present the image of fighting and punishing crimes,but gradually show the multiple aspects of understanding the social root of the occurrence of crimes,taking into account the interests of all parties involved in litigation,controlling the state's prosecution power and penalty power.It makes up for the deficiency of the traditional criminal litigation mode based on confrontation in the realization of justice and efficiency,and realizes the crime governance and the restoration of social relations in a flexible and gentle way to promote social harmony and order.The whole text is divided into four chapters,in a progressive logical order,to explain the structure of the leniency system of pleading guilty and accepting penalty.Chapter one is the overview of the leniency system of pleading guilty and accepting penalty.This chapter is composed of four parts:first,the connotation of the leniency system of pleading guilty and accepting penalty.The leniency system of pleading guilty and accepting penalty refers to the criminal legal system,in which in order to achieve governance of crime,repair the social relations damaged by crimes,the country integratedly uses means of entity,procedure and policy,encourage,guide and inspire the people being prosecuted to cooperate with the nation,voluntarily plead guilty and accept penalty,and safeguard in entity and procedure being prosecuted people get leniency."Pleading guilty","accepting penalty" and"leniency" respectively show different meanings in the three dimensions of entity,procedure and evidence.Second,the components of the leniency system of pleading guilty and accepting penalty.It includes the voluntary nature of pleading guilty and accepting penalty,the agreement between the prosecution and the defense,the procedural choice of the accused,the discretion of the subject of prosecution and legal relief.Third,the comparison between leniency system and related concepts.The leniency system of pleading guilty and accepting penalty is the embodiment of the legalization of the criminal policy of leniency upon confession.The leniency system of pleading guilty and accepting penalty and the system of plea bargain both recognize the relativity of justice and the exchange of interests in the agreement of prosecution and defense.However,there are obvious differences between the two in formation motivation,philosophical basis,legal effect of guilty confession and consideration of the interests of victims.The leniency system of pleading guilty and accepting penalty is the localization development of the consultative judicial model in China,but it does not take efficiency as the primary value.There are differences between the leniency system of pleading guilty and accepting penalty and the traditional criminal justice model in judicial concept,content of power and degree of fieedom of punishment.But the former is not to get rid of and replace the latter.The implementation of the former is still guaranteed by the compulsory judicial system.Fourthly,the leniency system of pleading guilty and accepting penalty has the intrinsic value of democracy,tolerance and harmony,as well as the extrinsic value of restoration,governance and efficiency.Fifthly,we should be alert to the inherent risks of the leniency system of pleading guilty and accepting penalty in entity,procedure and criminal policy,such as the risks of false confession and different punishments for the same crime,the risks of relying on oral confession and making false judgments,the risks of opportunism and breaking the bottom line of the law.Chapter two,the realistic rationality of the leniency system of pleading guilty and accepting penalty.This chapter has six parts:first,the inheritance and sublation of traditional legal culture.The value orientation and system arrangement of the thought of "harmony is the most noble" in the ancient legal culture of our country in the aspect of social dispute resolution provide a useful reference for the construction and operation of the leniency system of pleading guilty and accepting penalty.At the same time,we should also guard against the negative influence of the factors in the ancient legal culture,such as the pan-moralization,"the rule of man" and the absence of procedure.Second,the abiding by and improvement of constitution and legal principles.The leniency system of pleading guilty and accepting penalty is not a break with the constitution or the principles of criminal law.The state respecting and protecting human rights,everyone being equal before the law,the principle of legality and balance between crime and punishment,the principle of not forcing self-incrimination and presumption of innocence,and the principle of judgment of evidence all set the limits of legitimacy for the leniency system of pleading guilty and accepting penalty.The leniency system of pleading guilty and accepting penalty also provides an important opportunity for the perfection of our criminal legal principles.Third,the source and development of criminal policy.The original concept of criminal policy in the West and the special development of criminal policy in the context of China's system are the inevitable realistic basis of the leniency system of pleading guilty and accepting penalty.Criminal policy legalization set due institutional boundaries for the development of the leniency system of pleading guilty and accepting penalty.Fourth,the response and promotion of social governance.As an important part of the strategy of comprehensively promoting the rule of law,the leniency system of pleading guilty and accepting penalty is an important part of the social governance system based on the practice of social governance in China's transition period.Fifth,the summary and reflection of judicial practice.In terms of content and form,the leniency system of pleading guilty and accepting penalty has a continuity with a series of reform practices in the field of criminal justice in China,such as simplification of procedures,sentencing norms and pilot trials of the leniency of pleading guilty and accepting penalty.The summary and reflection of the previous "take severe measures against grave illegal and criminal activities " as well as the facing up to the large amount of "accusation and defense secretly bargain" in the judicial practice have laid a realistic foundation for the formation and development of the leniency system of pleading guilty and accepting penalty.Sixth,the choosing and reference of extraterritorial system.Compared with the American plea bargaining system which can not adapt to China,the practice of the civil law system's deliberative judicial model can provide useful reference for the improvement of our leniency system of pleading guilty and accepting penalty.Although the leniency system of pleading guilty and accepting penalty does not reveal the word "negotiation",it creates space and possibility for the agreement of prosecution and defense in the system construction.Chapter three,the theoretical legitimacy of the leniency system of pleading guilty and accepting penalty.This chapter is composed of seven parts:first,methodological basis:system epistemology and system methodology.As a criminal legal system under the guidance of the concept of criminal integration,the leniency system of pleading guilty and accepting penalty exists in a systematic form.The study of its structure and operation,as well as the discussion of its value and function in the whole criminal legal system,both need to use systematic methods to analyze and reveal.Second,the ethical basis:humanistic thought and forgiveness theory.The spirit of the rule of law is embodied in the leniency system of pleading guilty and accepting penalty as using system protecting rights to make the accused people sense humanistic concern in the leniency of pleading guilty and accepting penalty.pleading guilty and accepting penalty shows the accused's remorse for the existing crime,prevention of the pending crime and restoration of the victim and social interests.The criminal law should have greater reasons and space for forgiving the accused.Third,political science foundation:state and social relation theory.In the leniency system of pleading guilty and accepting penalty,the state forms a new relationship model with individuals in a relatively equal attitude--he relationship between subjects,which promotes the process of criminal proceedings through consultation and cooperation between subjects.Fourth,the criminological foundation:the complexity of the cause of the crime,the limitation and harm of penalty,and the theory of crime governance.The leniency system of pleading guilty and accepting penalty and punishment makes up for the limitation and deficiency of relying solely on penalty to control crimes through negotiation,reconciliation and decriminalization.Through the interaction between power and right,it shows the advanced concept of "procedural governance" in crime control.Fourth,foundation of criminal law:the theory of personal danger and the view of amalgamative penalty.To a certain extent,pleading guilty and accepting penalty indicates that the accused person's personal danger is reduced.The theory of personal danger provides justification for the causal connection between pleading guilty,accepting penalty and leniency.On the basis of responsible punishment,the leniency system of pleading guilty and accepting penalty achieves the purpose of crime prevention by imposing penalty corresponding to the doer's responsibility,which conforms to the concept of "punishing both existing crime and for preventing crimes" of amalgamationist penalty view.Sixth,the foundation of criminal procedure law:criminal procedure aim theory and procedure diverging theory.The facts of a case based on criminal proceedings that balance crime control and human rights protection being rational and acceptable is the best choice to realize the protection of legal interests and the protection of human rights through the leniency system of pleading guilty and accepting penalty.At the same time,the leniency system of pleading guilty and accepting penalty also conveys a new concept of prosecution:criminal prosecution procedure can realize the leniency towards the accused,reflecting the theory of procedural divergence by being "stopped down" or through a more simplified procedure.Seventh,the criminal policy science foundation:the criminal policy legitimacy and the new social defense thought.The leniency system of pleading guilty and accepting penalty is the embodiment of the legalization of China's criminal policy.The system has left a reasonable margin for policy guidance.The goal of the system is not only to punish the criminal with a punishment commensurate with the crime,but also to explore a way to deal with the crime reasonably,protect human rights actively and defend the society effectively,which embodies the new social defense thought.Chapter four,the operation mechanism of the leniency system of pleading guilty and accepting penalty.As a closed system of criminal law,the leniency system of pleading guilty and accepting penalty's internal elements interact with each other to form a progressive and coordinated operating system in the aspects of entity system foundation,procedural system framework,evidence system regulation and guarantee system connection.This chapter is divided into five parts:first,the starting point:from the horizontal classification of crime to the vertical classification of crime.The significance of crime stratification for the leniency system of pleading guilty and accepting penalty lies in the realization of different treatment of criminal procedure,criminal proof standard and penalty,starting from the stratification of crime.We should take the social harmfulness as the basis,set the punishment according to law as the standard,to divide the criminal law crime into the minor crime,misdemeanor and the high crime three levels.Second,the operational framework:from the "pipeline" program flow to the divergence of program flow.In the whole process of criminal procedure operation,the leniency system of pleading guilty and accepting penalty should always have the function of reasonably"filtering out" the cases from the criminal procedure system.The punishment system of minor crimes of investigation organs and the system of non-prosecution of public prosecution organs make the minor criminal cases of pleading guilty and accepting penalty solved efficiently in the pre-trial procedure and reduce the number of cases entering the trial procedure.In the trial stage,the criminal cases that must enter the trial procedure are treated differently in the trial procedure mainly through the trial procedure of divergence to simple cases and complicated cases.Third,operation boundary:from the same certification standard to the hierarchical certification system.In all criminal cases,the evidence on which the judgment is made should be "true and sufficient",but this does not mean that the "true and sufficient" standard of proof is the same in all criminal cases.We should take whether pleading guilty and accepting penalty as the pivot of procedural triage,and set up five different levels of proof standards,ranging from the lowest to the highest,for the quick adjudication of minor crimes,the summary procedure of minor crimes,the simplified trial of ordinary high crimes,the ordinary procedure of not admitting guilt and the death penalty procedure.Fourth,the running result:from the plane penalty way to the hierarchical penalty system.The result of the benign operation of the leniency system of pleading guilty and accepting penalty requires the improvement of the overall function of the penalty system,the gradual realization of the leniency of penalty amount and the enrichment of penalty types,and the coordination between the penalty system and the vertical level of crime as well as the multiple criminal proceedings.Fifth,operation guarantee.To realize power restriction and right protection by right supply has become the inevitable requirement of the change of the relationship between power and right in criminal procedure.To create opportunities for the accused and the victim to reconcile through improving the criminal reconciliation system and to care for the victim's right restoration,to endue the accused with full defensive rights and stimulate the prosecution and defense equality through establishing the evidence discovery system and improving the legal aid system are the necessary guarantee for the benign operation of the system of the leniency system of pleading guilty and accepting penalty.
Keywords/Search Tags:the leniency upon pleading guilty and accepting penalty, criminal integration, governance of crime, the agreement between the accusation and defense, operational mechanism
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