| The legitimacy of the criminal procedure system is related to the operational basis of the system and the basic direction of its future development.The voluntary admission of punishment to the accused is the legitimate foundation of the leniency system of pleading guilty.Ensuring the voluntary admission of punishment of the accused is one of the key issues for the improvement and development of the lenient system of pleading guilty in the future.The defendant’s voluntary admission of punishment is essentially a subjective problem,which is difficult to judge by external objective conditions.at present,the protection of the defendant’s voluntary plea of punishment is still at the level of judging the subjective will by objective conditions.Although the procedural protection and the implementation of the obligations of the organs of public power can ensure that the objective conditions meet the voluntary nature of the accused to plead guilty to punishment to the greatest extent,it is difficult to judge whether it is a true voluntary choice.Based on the right of choice of the accused,the system of the right of choice to plead guilty and punish the accused can be constructed,after giving the accused enough right of choice,when the objective conditions such as the procedural guarantee and the full performance of the relevant subject obligations are satisfied,to ensure that the choice or not carried out by the accused under the domination of his subjective consciousness can fully express his willingness.Therefore,an in-depth study on the option of the accused to plead guilty is of great theoretical value and practical significance.The full text is divided into five chapters,a total of about 200000 words.The first chapter is an overview of the basic theory of the option of the accused in pleading guilty and punishment.this part discusses it from three aspects: first,it explains the connotation,denotation and nature of the option of the accused.First of all,to explain the connotation of the right of choice of the accused to plead guilty to punishment,it is necessary to clarify the relationship between "pleading guilty" and "accepting punishment".There is a separability between "pleading guilty" and "admitting punishment".The accused can choose between "pleading guilty" and "pleading guilty + accepting punishment",both of which can produce the effect of "leniency".Then there is the interpretation of "choice" and "right".The choice is the process and the result,and the first choice is the choice.The voluntary choice of the accused is the premise and necessary condition for the initiation of the plea procedure.Whether the lenient procedure of pleading guilty and punishment is applicable to the accused depends entirely on the free will of the accused,and the accused needs to choose whether it is applicable according to his own situation,which is the result of considering the pros and cons combined with subjective and objective conditions.Secondly,the defendant’s right of choice has entity and procedure orientation in denotation.In entity,the accused who chooses to "plead guilty" should voluntarily and truthfully confess his crime,admit the facts of the alleged crime,and choose to accept the sentencing opinions of the procuratorial organs and show that he is willing to accept punishment at the trial stage;in procedure,the accused participate more in the promotion of criminal proceedings through pleading guilty,and can propose and express motions,consent and objections to procedural matters.Thirdly,from the characteristics of guarantee,Noumenon and endogenesis of the defendant’s right of choice.The second is the legal basis of the option of the accused to plead guilty and punish.First of all,voluntary surrender,confession of legal circumstances,the basic principles of criminal substantive law compatible with crime,responsibility and punishment,and the criminal policy of combining justice with leniency constitute the theoretical basis of substantive law for pleading guilty and punishing the accused.Secondly,in the theoretical basis of procedural law,the right to choose to plead guilty and punish the accused embodies the subject status of the accused,which is the concrete manifestation of the subject theory of the accused.At the same time,the accused can give up the corresponding litigation rights through voluntary choice,apply the faster trial procedure,and achieve the maximum economy of the procedure,which is the embodiment of the value theory of the efficiency of criminal procedure.In addition,in the process of criminal proceedings,the accused chooses to carry out litigation activities with prosecutors and judges through pleading guilty and punishing,and produces judicial decisions in the process of litigation,which meets the basic requirements of the theory of procedural justice.Thirdly,at the theoretical level of the law of evidence,the accused who plead guilty can enhance their evidentiary ability and probative power of confession and defense through choice.The third is the legal value of the right of choice of the accused to plead guilty.From the perspective of substantive law,giving the accused the right to plead guilty to punishment can further implement the criminal policy of combining justice with leniency and achieve the goal of accurate sentencing;in the aspect of procedural law,it can alleviate the conflict between justice and efficiency of criminal procedure and achieve procedural justice to a greater extent;in the law of evidence,it can strengthen the legitimacy of the accused’s confession,simplify the process of proof of the case,and reduce the burden of proof of procuratorial organs.The second chapter is the basic content of the right of choice of the accused to plead guilty.This part discusses the types,formal and substantive elements of the right of choice of the accused in pleading guilty to punishment: the first part is the type of the right of choice of the accused in pleading guilty.The right of choice of the accused in pleading guilty can be divided into two types: entity choice and procedure choice.First of all,in the entity choice,the accused has the right to "plead guilty",the right to "admit punishment" and the right of substantive repentance;the accused’s right to "plead guilty" refers to the right of the accused to choose whether or not to confess the facts of his crime.The option of "punishment" is mainly reflected in the stage of examination and prosecution,which is the right to choose a lenient range of punishment after pleading guilty under the guidance of the prosecutor and with the help of the defense lawyer or the lawyer on duty.The second is the right to choose the procedure of pleading guilty and punishing the accused,including the right of procedural choice and the right of procedural remorse.Among them,the right of choice of procedure means that the accused has the right of procedural motion,the right of procedural consent and the right of procedural dissent to the procedural matters in the lenient procedure of pleading guilty;the right of procedural remorse is the right of the accused to reverse the procedural choice that has been made after making the procedural choice.The second part is the constitutive elements of the right of choice of the accused to plead guilty to punishment,which is mainly composed of five aspects: normative elements,subject elements,object elements,consciousness elements and behavior elements.First of all,the normative elements are the legal basis of the relevant content of the right of choice of the accused to plead guilty and punish.Secondly,the subject element can limit the subject scope of the accused’s right of choice,and the subject of the accused’s right of choice to plead guilty and punish can only be limited to the accused himself according to its ontological characteristics.Secondly,the elements of the object correspond to the elements of the subject,all the cognitive objects that enter the cognitive field of the subject are the object,and the object of the right of choice of the accused to plead guilty should be composed of entity,procedure and evidence.Finally,the elements of consciousness and behavior means that the accused should make a corresponding effective choice behavior when exercising the right of choice,and the choice behavior should be effective only on the premise of the unity of his choice consciousness and choice behavior.The third chapter discusses the exercise of the prosecutor’s right to plead guilty to punishment.This chapter is divided into four parts: the first part is the basic premise of pleading guilty and punishing the accused to exercise the right of choice.The defendant’s exercise of the right of choice is based on the basic premise of voluntariness,which can safeguard the subject status of the defendant in the lenient procedure of pleading guilty and punishment,and is the legitimate foundation of the lenient procedure of pleading guilty and punishment.at the same time,voluntary is also an important way to prevent the wrong case of the enemy in the lenient procedure of pleading guilty.In terms of voluntary criteria,whether the plea and punishment is voluntary or not is a matter of mental state in the final analysis.When judicial organs evaluate the voluntary plea of guilt and punishment of the accused,generally speaking,they rely on some objective measures,and tend to describe whether the defendant pleads guilty voluntarily or not according to the voluntary,knowing and rational standard of confession.Therefore,on the basis of certain objective facts.The voluntary choice made by the accused on the premise of knowing the consequences and rational judgment can be recognized as the right of choice to be exercised voluntarily.Accordingly,knowing the consequences,rational judgment and a certain basis of objective facts together constitute the voluntary elements of the exercise of the defendant’s right to choose to plead guilty.The second part expounds the requirements of the relevant subjects after the accused pleads guilty and admits punishment after exercising the right of choice.The first is the requirements for the accused.After the accused pleads guilty and punishes the accused,the authenticity of the confession and defense should be ensured.False or only a partial confession of criminal acts will reduce the efficiency of litigation.Therefore,after pleading guilty,the act of confessing only part of the criminal act or confessing false criminal facts should be reasonably regulated.In addition,the accused should exercise the right of remorse to a limited extent,taking into account the fluency of the procedure and the seriousness of the judicial procedure,the accused’s right of remorse should be limited.The second is the requirements for procuratorial organs.The procuratorial organ has the leading position of procedure and substance in the lenient procedure of pleading guilty and punishment.it is not only the leader of the pretrial procedure of pleading guilty and lenient case,but also the legal supervisor,in order to ensure the basic fairness and justice of the procedure,the procuratorial organs should perform the necessary objective obligations and require the procuratorial organs to abide by the judicial integrity.Thirdly,when hearing the cases of pleading guilty to punishment,the judicial organs should try the cases of pleading guilty,pleading not guilty and not admitting punishment according to the different circumstances of the case,flexibly apply the trial procedure and grasp the focus of the trial.The third part discusses the influence on the defense work,the public prosecution work,the trial work and the victim after pleading guilty and punishing the accused.First of all,the exercise of the right of choice of the accused will have an impact on the defense work.After the accused chose to plead guilty to punishment,the defense mode began to change from confrontation to consultation,and the focus of defense began to change from persuading the judge to persuading the prosecutor.The defense idea began to be based on consultation,attached importance to the defense of misdemeanors and tried to seek the application of non-prosecution.Secondly,the influence on the public prosecution after pleading guilty and punishing the accused after exercising the right of choice mainly lies in the public prosecution’s re-understanding of the relationship between arrest and detention,and the leniency system of pleading guilty to punishment is closely related to the criminal justice policy of careful prosecution and careful detension.the defendant’s choice of pleading guilty will have a subtle change in the relationship between arrest and detention,which requires procuratorial organs to have a new understanding of the relationship between arrest,prosecution and detention.Thirdly,after the accused exercise the option to plead guilty,the court should stick to its own sentencing right to prevent the sentencing suggestion right of procuratorial organs from eroding the court’s sentencing right.Finally,the victim is the recipient of the criminal act of the accused.In the case of pleading guilty and punishing,the victim should not be "generalized",but should be limited to the scope of "natural person victim".With regard to the status of the victim,apart from "whether to reach a settlement agreement with the accused" and obtaining civil compensation through "active compensation of the accused",the victim can not enjoy more rights and interests brought by the lenient procedure of pleading guilty and punishment.can not be the subject of litigation to participate in the process of pleading guilty and punishment negotiation,can not exercise the "right to seek punishment" in order to obtain heavier punishment for the perpetrators of criminal acts.The victim is only a participant rather than the subject of the lawsuit in the lenient procedure of pleading guilty and punishment.the influence of the accused’s right to plead guilty on the victim mainly focuses on the amount of compensation to the accused and the spiritual apology after the accused chooses to accept punishment.if the accused pleads guilty and pleads punishment,the victim can relatively get higher compensation and get an apology,but the accused does not plead guilty.Relatively speaking,the compensation will be reduced.The fourth part is the legal effect of the accused exercising the right of choice.First of all,the substantive effect is mainly reflected in the impact on sentencing,the accused pleaded guilty to plead guilty to exercise the right to choose to make them deeply participate in the process of sentencing negotiation,which to a certain extent curbed the further strengthening of "prosecutor’s justice".It makes the definite sentencing recommendation more legitimate.Secondly,in terms of procedural effect,the case handling mode began to transform,the efficient case handling mode began to be relied on,the procuratorial organs began to take the lead,the "public prosecution mode" began to take shape,and the judges’ actual control over the cases of pleading guilty and punishment was weakened.the procuratorial organs began to intervene in the investigation procedure in advance and put forward sentencing suggestions according to the choice of the accused,sharing part of the sentencing power of the court.In addition,the criminal right of procuratorial organs has been strengthened,the application of compulsory measures has changed under the combination of the criminal policy of less arrest and careful detention and the lenient system of pleading guilty to punishment,the rate of pre-trial detention has been reduced,and attention has been paid to the application of non-custodial compulsory measures.Thirdly,in the effect of the law of evidence,the effect of the law of evidence after pleading guilty and punishing the accused after exercising the right of choice mainly lies in the object of proof and the difficulty of proof.In terms of the object of proof,the accused who pleads guilty to punishment proves that the object should be voluntary after exercising the right of choice,which includes three specific factors: knowledge,reason and factual basis.In terms of the difficulty of proof,the difficulty of proof has been significantly reduced after the accused pleaded guilty and punished after exercising the right of choice,but the standard of proof has not changed.The fourth chapter is the investigation of the current situation of the right of choice of the accused to plead guilty.This part consists of three parts: normative analysis,specific practical situation,existing problems and their causes: the first part is the normative analysis of the right of choice of the accused to plead guilty.First of all,it traces the source of the legislation of the right of choice of the accused to plead guilty and punishment.in the pilot process of the lenient system of pleading guilty and punishment,the local implementation rules stipulate the right of choice of the accused.There are provisions on the right of choice of the accused to plead guilty and punish in the current Criminal procedure Law and relevant judicial interpretations.The second part is the judicial status quo of the right of choice of the accused to plead guilty.First of all,at the stage of the investigation organ,the accused has the "current" situation of being caught and the desire for lenient punishment,so there are certain objective conditions for the accused to choose to plead guilty in the investigation stage.however,it should be recognized that the substantial factors that affect the guilty plea choice of the accused are more sentencing after pleading guilty,and the accused pay more attention to penalty rather than conviction,among the subjects involved in the choice of guilty plea.Investigators do not understand that the accused has the right to plead guilty and punish,and think that there is no difference between confession and leniency,while the duty lawyer and defense lawyer think that it is difficult to carry out work in the investigation stage.Secondly,the stage of examination and prosecution is an important stage in which the choice of guilty plea and punishment can form a complete result.In the stage of examination and prosecution,most of the accused chose to plead guilty but not punished,and the possibility of "pleading guilty" and "pleading guilty + punishment" appeared at the same time is relatively high.From the point of view of the case-handling personnel of the procuratorial organs,the right of choice of the accused is not easy to be accepted,and the procuratorial organs have become accustomed to leading the procedure.From the perspective of lawyers,the right of choice of the accused is difficult to be implemented,and the reasons include the falsification of the legal help of the duty lawyer and the defense lawyer’s hope to make the accused accept the guilty plea through sentencing defense and reduce the case cycle.Thirdly,in the trial stage,the judge only makes a simple formal examination of the situation in which the accused chooses to plead guilty,so as to fulfill the obligation stipulated in the Criminal procedure Law to examine the defendant’s voluntary plea of guilty and punishment.focus on the result review rather than the process review.The third part is the existing problems and causes of the right of choice of the accused to plead guilty and punish.First of all,the subject status of the accused needs to be improved.Under the lenient system of pleading guilty and punishment,the accused is more active participants.The second is the incompleteness of the content of the option of the accused in pleading guilty to punishment,including unclear legal provisions and unclear positioning.Secondly,the legal help obtained by the accused is not substantial,and the falsification of legal help will directly cause the accused to be unable to exercise the right of choice correctly in the process of pleading guilty and punishment.the main reason is that the duty lawyer is unable to provide effective legal help because of the system design.Thirdly,the contradiction between the leading position of the procuratorial organ and the right of choice of the accused arises because of the different litigation roles and the alienation of the dominant position in the lenient procedure of pleading guilty.On the one hand,the accused think that they further enjoy the right to choose sentencing recommendations after pleading guilty,on the other hand,the procuratorial organs think that everything should be in their own hands,so there are contradictions and conflicts.The fifth chapter is the perfect path of the defendant’s right to choose to plead guilty and punish.The improvement of the right of choice of the accused in pleading guilty should start from three aspects: the normative construction,the positive guarantee of the right of choice and the reverse guarantee of the right of choice of the accused.First of all,the normative construction solves the problem that the right of choice of the accused does not have an accurate position in the system status.The right of choice of the accused is an important part of the voluntary guarantee of pleading guilty and punishing the accused.The lenient system of pleading guilty provides space for the accused to choose.At the same time,in order to ensure the basic balance of prosecution and defense in the lenient procedure of pleading guilty and punishment,and restrict the dominant position of procuratorial organs,the lenient system of pleading guilty and punishment should take the right of choice of the accused as the main content in the next reform and improvement.So as to ensure the fairness and impartiality of the lenient procedure of pleading guilty.In addition,we should improve the relevant legislation to fill the vacancy in the legal norms of the defendant’s right of choice to plead guilty and accept punishment,increase the provisions of principle at the legal level,and properly explain the relevant connotation of the defendant’s right of choice.connect the defendant’s right of choice with the existing relevant safeguard measures.Secondly,in terms of positive protection,first of all,it is necessary to strengthen the subject status of the accused,and then mainly solve the difficulty that the accused did not get substantive legal help in the process of exercising the right to plead guilty.By giving the accused the right to know the evidence,so that the accused can have a certain right to read the papers,so as to ensure that the accused can voluntarily exercise the right to plead guilty under the circumstances of knowledge and reason.At the same time,procuratorial organs are required to fulfill their objective obligations under the premise of normalizing the dominant position to ensure the exercise of the accused’s right to plead guilty and punish.Thirdly,in the reverse protection,first of all,from the perspective of involuntary pleading guilty and punishment of the accused,through discovering and identifying involuntary pleading guilty and providing right relief to the accused,and then from the point of view of pleading guilty and reversing,to construct a limited estoppel mechanism for pleading guilty and punishing the accused. |
