Research On The Practical Problems Of The Lenieny System For Admission Of Guilty And Accepting Punishment

In October 2018,the Lenieny System for Admission of Guilty and Accepting Punishment was officially written into the criminal procedure law,providing a new topic for theoretical research.Theoretical and practical circles have carried out in-depth research and extensive discussion on the system connotation,value pursuit,operation mechanism and other issues.In order to standardize the application of the system,in October 2019,the two senior three ministries issued the guiding opinions,which responded to and answered most of the practical problems.However,there are still some problems to be solved in practice,such as voluntary confession and punishment,the handling of the defendant's estoppel appeal,the standard of proof and the judge's review responsibility,and the realization of leniency.Some scholars use empirical research,comparative research and other methods to study these issues.However,from the practical point of view,some studies pointed out the problems,but did not provide a solution.If there is a point of view that there are two standards of voluntary confession: subjective and objective,which should be based on objective judgment,with rights restricting power to establish voluntary judgment standards,but did not put forward how to build specific standards.Some views do not get rid of the "legal Orientalism" stereotype,take the Western model to cover the Chinese problem,and the conclusions or suggestions are lack of operability.For example,some views think that the accused should be allowed to withdraw the commitment of confession and punishment at will,and the book signed after estoppel can not be used as the final evidence,etc.As a part of the criminal justice system and the national governance system in China,the construction of leniency of confession and punishment system has inherent logic and systematicness.When we study the specific problems of leniency of confession and punishment system,we can't "treat the head with headache and the foot with pain".To examine the Lenieny System for Admission of Guilty and Accepting Punishment from a holistic perspective,the first problem is to solve the problems of "institutional framework" and "institutional gene".This is the premise of building and improving the Lenieny System for Admission of Guilty and Accepting Punishment,and also the direction and basis of all specific problems.Only by clearing this problem can we see the stones of other mountains with the strategic focus of "there is a gap in the chest",and use the advanced practices and useful experience of other countries for our own use,otherwise we will be dazzled and at a loss.On the one hand,it is necessary to objectively evaluate the influence of leniency of confession and punishment system on the structure of criminal procedure in China and the shaping of leniency of confession and punishment system by the structure of criminal procedure.To some extent,the Lenieny System for Admission of Guilty and Accepting Punishment reflects the characteristics of the "cooperation mode" of criminal procedure,which should be comprehensively examined in combination with the background of the Lenieny System for Admission of Guilty and Accepting Punishment,legislative motivation,system changes,etc.On the other hand,we should correctly understand the influence of leniency system of confession and punishment on criminal substantive law.The criminal procedure law can not be cited as the basis for leniency.After the amendment of the criminal procedure law,the criminal law should be adjusted according to the Lenieny System forAdmission of Guilty and Accepting Punishment.How to implement leniency also needs to be studied according to the substantive law theory and put forward a set of solutions with legitimacy and operability.All in all,only by clarifying the theoretical issues can we grasp the context of leniency of confession and punishment system more clearly,analyze the specific problems faced by the current leniency of confession and punishment system more thoroughly,and put forward targeted suggestions for system improvement more accurately.The examination standard of voluntary confession and punishment must be consistent with the litigation structure of authority doctrine,and the judgment of voluntary confession and punishment is subject to the judgment of authenticity of confession and punishment.The voluntary examination of confession consists of objective criteria and subjective criteria.The objective standard refers to that the case handling organ informs the accused of the content,penalty consequences and litigation rights,and allows the lawyer to participate in the sentencing consultation;if the case handling organ adopts illegal methods such as extorting confession by torture to collect the accused's confession,or uses illegal methods such as violence and threat to collect the witness' s testimony,victim's statement and other verbal evidence,its voluntariness is excluded.The subjective standard depends on the neutral judgment of judicial personnel,combined with the involuntary external representation of the accused for verification,according to the general experience of ordinary people or society as the basis of judgment.When the special organ forces the accused to plead guilty involuntarily,or changes the sentencing proposal without consultation,the accused can exercise the right of estoppel based on the agreement of "confession and punishment".In case of the defendant's repentance without proper reasons,the judicial organ shall re evaluate the performance of his repentance after finding out the situation,and decide whether to continue to deal with the leniency or make appropriate adjustment to the leniency,but it is not suitable to restrict the defendant's right of appeal,nor to appeal with "punishment" without proper reasons.As the guarantee mechanism of voluntary confession and punishment,effective legal help,implementation of right notification requirements and establishment of voluntary review mechanism of confession and punishment are essential.The standard of proof is the concretization of the purpose of criminal procedure,which embodies the value pursuit of criminal justice system.As a concept,"standard of proof" has three sides and "Trinity",including the standard of proof as a legal norm(legal standard of proof),the standard of proof as an inner conviction and the standard of proof as a degree of probability.The proof standard of our country has internal connection with the "proof mode" in judicial practice.The proof mode has strong experience,high dependence on the accused's guilty confession and strong subjectivity,which determines that the three aspects of the concept of proof standard in judicial practice often present a state of separation.The proof standard of inner conviction is not always able to meet the legal proof standard and the proof standard of inner conviction It may not be consistent with the proof standard of probability degree.The leniency of confession and punishment system has not relaxed the requirements of collecting evidence for investigation organs,simplified procedures have not lowered the legal standard of proof,nor the standard of proof as probability,but it has lowered the standard of proof as inner conviction.Under the authority doctrine,the court must examine the case of pleading guilty and admitting punishment in essence,so it can not relax the responsibility of examining the judge.It can solve the concerns of the judge group from theperspective of improving the system of judicial responsibility investigation,eliminate the worries of the judge,and avoid the judge's "leaving the pot" for formal examination.There are two requirements to implement Leniency: entity leniency and compulsory measures leniency.In the aspect of implementing entity leniency,there are some problems such as the difficulty of implementing precise sentencing suggestions and the difficulty of determining the leniency range.In the aspect of implementing compulsory measures,the main problem is the high application rate of Compulsory Custody measures.For the former,we must realize the unity of relativity and absoluteness of sentencing justice,so that sentencing must be carried out in strict accordance with the norms within the legal penalty range,and consider the handling of similar cases and the agreement of both parties.Specifically speaking: in legislation,we need to revise articles 61 and 67 of the revised criminal law to determine unified standardized guidelines;in the review and prosecution activities,we need to standardize the drafting and consultation of sentencing recommendations;in the trial stage,we must respect the agreement of sentencing recommendations.At the same time,it is necessary to establish a scientific assessment mechanism of sentencing suggestions to boost the enthusiasm of prosecutors to participate in the reform.For the latter,it is necessary to perfect the problems in practice,including promoting the use of intelligent positioning equipment in non custodial coercive measures,strengthening the social risk review of the defendants who plead guilty and plead guilty,making clear the conditions for non custodial coercive measures,and gradually promoting the concept progress.The innovation of this paper lies in three aspects.One is the perspective of the relationship between system and social history and culture.The negotiation of confession and punishment is the key point of the reform of the Lenieny System for Admission of Guilty and Accepting Punishment and the focus of theoretical debate.The author's monograph focuses on the theoretical issues of this system around the negotiation mechanism.Based on the treatise of the monograph,this paper looks at consultation from the perspective of consultation mechanism,further analyzes the criminal justice system and its profound social,historical and cultural basis from the factors such as the relationship between state power and civil rights,historical and cultural traditions,and the concept of justice,and observes the impact of the new change and new system of leniency of confession and punishment on China's criminal justice system,and then leniency of confession and punishment In the system,the right of estoppel,standard of proof,leniency and other outstanding practical problems are analyzed and countermeasures are put forward.Second,systematic thinking.The system of leniency of confession and punishment is systematic and logical.The structure of criminal procedure governs the construction of criminal procedure system.In the system of leniency of confession and punishment,the specific systems such as voluntary confession and punishment,the right of estoppel of the accused,the standard of proof of confession cases and the responsibility of the court must reflect the requirements of criminal procedure structure.At the same time,the criminal policy of combining justice with leniency has an impact on the substantive law.Substantive law provides justification for the Lenieny System for Admission of Guilty and Accepting Punishment.The concepts of "confession","confession and punishment" and "Leniency" must be understood in combination with criminal law theory.On the other hand,substantive law should also be revised and improved according to the Lenieny System for Admission of Guilty and Accepting Punishment.Third,the original view ofsystem improvement.The purpose of theoretical research is still to solve practical problems.According to the structure of criminal procedure and its social and cultural background,this paper proposes that the leniency of confession and punishment system will not stay in the"positive paradigm" of "first confession,then confession,then leniency",nor the "reverse paradigm" of "first promise,then confession,and punishment" similar to the plea bargain in the United States,which is likely to be "limited inverse" To paradigms ".Based on the structure of criminal procedure of authority doctrine,this paper points out that the key to the voluntary judgment of confession lies in the authenticity of intention expression rather than the willingness of the accused,and then puts forward the subjective and objective judgment criteria of voluntary confession and punishment,and deduces the content and consequences of the right of estoppel.This paper puts forward the concept of "Trinity" proof standard,which is the proof standard stipulated by law,the proof standard of inner conviction and the proof standard of probability degree.Based on this,it analyzes the actual situation of the proof standard in the case of confession and punishment.