Study On Penalty Measurement Advice Of Procuratorate Office

The thesis has preface and 10 chapters, discussing the definition of penalty measurement advice, main issues involved, legal basis, the pilot program, the principle and application conditions, the process of how penalty measurement advice is proposed, advice explanation in the court and protest remedy.Penalty measurement advice helps procuratorate office to better perform their functions, and also helps the court to adopt a unified penalty measurement standard, consequently favorable to guaranteeing the rights and interests of the parties concerned, and reducing unnecessary protest from the procuratorate office. On studying penalty measurement advice, we should consider both theory and practice, both‘should to be done'and‘can be done in reality', and should insist on Criminal Integration ideology.I. The definition of penalty measurement advicePenalty measurement advice relates to penalty, power of imposing penalty, right of sentence recommendation. Penalty is the most severe compulsory measure against the offenders. Power of imposing penalty includes the power of creating penalty, the right to sue, the power of penalty measurement, and the power of penalty implementation. Currently, many theories are explaining the definition of penalty measurement advice. Some considers penalty measurement advice as a requirement, some considers it only as a suggestion, some considers it as a suit action, some considers it as a power (right), and some considers it as a legal system. Some are explaining it from a broad perspective, others from narrow perspective. The author thinks that the penalty measurement advice is the activity that the procuratorate office, on the basis of full investigation and accusation on the crime of the defendant, proposes detailed and clear suggestions to the court on what penalty shall be charged, the term of the penalty, additional penalty, and also the implementation thereof.II. Main issues involvedCurrently, main issues influencing penalty measurement advice include improper views of procuratorate office, court judge, and the defendants; rather vague regulations on penalty measurement advice in Criminal Procedure Law; inapplicable regulations of the Criminal Law on the sentence type, penalty extent, and measurement thereof; inconsistency of judicial agencies in handling similar cases.III. The comparative study on penalty measurement advice in foreign countriesBoth the civil law countries and common law countries have adopted penalty measurement advice system. In civil law country, procurators are proposing penalty measurement advice in accordance with clear regulations of Criminal Law or their role as procurators. In common law countries, especially U.S., the procurators are proposing penalty measurement in accordance with the precedent. Under most circumstances, procurators propose detailed penalty measurement advice with few exceptions in individual cases when they are proposing only general advice. In principle, the penalty measurement advisement is not binding for the court. In China, we can the directly borrow penalty measurement advice system of civil law countries including their plea bargaining system and refer to hearing system of common law countries.IV. Legal basis of penalty measurement advisementThere are no clear regulations on penalty measurement advice in current laws. However, in author's view, Constitution, Criminal Procedure Law, Procurators'Law, The People's Procuratorate Organization law, and People's Court Organization Law are supportive to the penalty measurement advice. The law theory basis for penalty measurement advice include law supervision theory, action structure theory, public suit theory, crime-penalty relation theory and the theory of the power for imposing penalty. The central judicial system reform is requesting to consider penalty measurement as one of discretion in court process and penalty measurement standardization. In recent years, the procuratorate's reform also includes penalty measurement advice. In the court reform, standardizing discretion and measuring penalty in the court process is top priority.V. The pilot program of penalty measurement advice Currently, dozens of provincial and municipal procuratorate offices are conducting penalty measurement advice pilot program when handling different cases. In general, the pilot program has been pursued for long time with wide application scope. The operation is rather standardized, and is well recognized and cooperated by the courts. Most penalty measurement advice is adopted by the court. Thus more cases are sentenced on the spot and fewer cases are being appealed.VI. Principles of penalty measurement advice The principles will guide the procurators to properly propose penalty measurement advice. In accordance with legal basis, values to be attained, due responsibilities and role and effects evaluation, the principles include: 1. The advice shall be proposed in accordance with the Criminal law, including the basic principles, statutory penalties as well as their application conditions. 2. The principle of justice and fairness, including substantial justice, procedure justice, and fair debating, separation of accusation and sentence. 3. The principle of integrating responsibilities performance,the respect for court verdict and protecting rights and interests of the parties concerned. 4. The principle of insisting both legal effect and social effect.VII. the requirement for penalty measurement advice1. The advice shall contain clear fact explanation. 2. The advice shall contain detailed and clear penalty measurement proposal. The advice shall not refer to other type of criminal penalty and it shall not cover whole penalty extent. The advice shall be detailed and clear with only few exceptions. When imposing public surveillance, criminal detention and some fixed-term imprisonment, life imprisonment and death penalty, deprivation of political rights for the whole life, confiscation of personal whole asset, being driven out of territory, exemption form penalty, and reprieve, the procurators shall definitely propose detailed and clear advice. When imposing fixed term imprisonment for less than 2 years (2 years not included), criminal fine, some asset confiscation, the procurators could propose extent of penalty instead of definite penalty. 3. The advice shall be full justified. 4. The advice shall be in standard form. These 4 conditions are interacted and integrated into one. VIII. how procurators propose adviceThe subject is procuratorate office instead of individual. The advice can be proposed when suit action just begins and can be supplemented in the court process. Inside procuratorate office, the individual may provide proposal for discussion, and decision will be finally made by majority vote. If the case is complicated with wide influence, the advice shall be reported to the superior agency. Before and during the court process, the advice can be amended and supplemented. The penalty measurement advice is a working document exclusively for advice, rather a legal document. The proposal shall adopt unified and standardized form and be submitted to the court together with case file.VIIII. Suggestions on court actionIn accordance with the quo status, independent penalty measurement procedure is not a good option. The feasible program is to cut court debate into two, the one to convict the offenders, and the one to measure penalty. In accordance with the result of court investigation, the procurators will, on the basis of full debate on what crime will be convicted against the defendant, under the presidency of the judge, propose their advice on whether penalty shall be charged and how to charge penalty. The defendant and his lawyer can propose different opinions. The debating result will directly influence the final decision.The penalty measurement advice will be actively referred to by the court. When the judicial commission of the court discusses complicated cases, the procurator may take presence to further explain their penalty measurement advice.In simple procedure, the procurator may also propose penalty measurement advice. VV. The remedyThe remedy procedure includes protest and death penalty review. In the first-instance trial, the protest of procurator propose advise on both conviction and penalty measurement. The protest against first-trial includes the one against unreasonably too heavy or too light penalty, against no-crime sentence and punishment exemption decision. The procurators may also protest against death penalty. For second-trial case without appealing, if the penalty is too heavy, the procurators could suggest abandoning original decision. While if the penalty is too light, the procurators could not directly propose to abandon original one. For those effective court decisions, the procurators could initiate re-adjudication to protest. And the procurators shall also supervise the death penalty review of the court. In some cases when the death penalty shall not be adopted, the procurators can propose to have it changed.Conclusion-development trend on penalty measurement advice Strictly speaking, due to few regulations on penalty measurement advisement, there is no corresponding legal regime. Thus, while we are improving criminal procedure law, clear and applicable regulations on penalty measurement advice shall be included.