| The Criminal Procedure Law,revised in 2018,legislated the leniency system for admitting guilt and accepting punishment.According to the provisions of Article 15 of the Criminal Procedure Law,if a criminal suspect or defendant voluntarily confesses his crime truthfully,admits the charged facts,and is willing to accept punishment,he(or she)may be treated leniently according to the law.As a new system,the scope of its application is not limited by the Criminal Procedure Law.In other words,the leniency system can be applied to all criminal cases.However,in terms of the application of the current judicial practice,the scope of the leniency system is mainly applied to misdemeanors and ordinary cases,and the proportion of the system for felony cases where the accused may be sentenced to more than three years in prison is still relatively limited.There are two main reasons for this situation.One is that,the system itself has defects,which means,felony cases generally have the characteristics of seriousness and complexity,and it is often difficult for the accused to voluntarily accept the sentencing recommendation by the prosecutor when they confess.So they cannot meet the requirements of applying the leniency system.The other is that,there are some problems in the system when it is applied to felony cases,such as the difficulties in application of procedure,evidence judgment,sentencing norms and the help of lawyers.And if the felony case with a victim,the investigators also need to spend a lot of time and energy to educate the accused to admit guilt and accept punishment,and negotiate with both sides of the compensation.So the application of leniency system is not only failed to achieve the purpose of improving the efficiency of lawsuit,but also aggravate the burden of the investigators.All of the above make it difficult to apply the leniency system to felony cases.On October 24,2019,the Supreme People’s Procuratorate,the Supreme People’s Court,the Ministry of Public Security,the Ministry of State Security and the Ministry of Justice jointly issued the “Guiding Opinions on the Application of the Leniency System for Admitting Guilt and Accepting Punishment”,which once again pointed out that the scope of the leniency system should not be limited.It should be applicable to all criminal cases,and suspects and defendants cannot be deprived of the opportunity to voluntarily plead guilty and accept punishment for leniency no matter the crime is light,serious or special charges.At this stage,in order to ensure that the leniency system for admitting guilt and accepting punishment can meet the needs of judicial practice and apply to felony cases,it is necessary to conduct in-depth research on the system and put forward suggestions for its improvement.The thesis is titled on“Research on the Application of the Leniency System for Admitting Guilt and Accepting Punishment in Felony Cases”,which based on the judicial practice of the current felony cases in our country,and discusses the theoretical basis,litigation procedures,evidence rules,sentencing suggestions and the help of lawyers.We will focus on solving the difficult problems in the application of the system and propose appropriate solutions,so as to contribute to the theoretical improvement of the leniency system for admitting guilt and accepting punishment.Apart from the introduction,this thesis is divided into four chapters:Chapter 1-“Basic theory of the application of the leniency system for admitting guilt and accepting punishment in felony cases”.In this chapter,before discussing the theoretical basis for the application of the system to felony cases,the author first discusses the connotation and application of the leniency system for admitting guilt and accepting punishment,and clarifying the preconditions,scope of cases,litigation stages and procedures for the application of the leniency system.On this basis,the felony cases applicable to the system are defined as the cases in which the accused may be sentenced to fixed-term imprisonment of more than three years,specifically including the cases in which the accused may be sentenced to life imprisonment and the death penalty.However,criminal cases that seriously endanger national security and public safety,violent crimes,major sensitive cases of high social concern,and cases where the accused person is a mental patient with limited capacity should be excluded.After the above basic concepts are determined,the author focuses on the research on the theoretical basis of applying the leniency system for admitting guilt and accepting punishment in felony cases,and clarifying the basis,meaning and existing obstacles of the application of the system.First of all,the basis for the application of the system to felony cases comes from the support of criminal law theory and criminal procedure law theory,including the theory of modesty in criminal law,the theory of personal danger reduction,and the theory of procedural subject and judicial democracy in criminal procedure law.Secondly,the application of the system to felony cases includes both positive and negative aspects.The positive significance is reflected in saving judicial resources,effectively combating crimes,and embodying judicial tolerance.There are still some practical obstacles in the application of the re-system to felony cases,including the defects of the system itself,the problems of procedural setting,the problem of evidence judgment,the problem of sentencing recommendations and the protection of the rights of the accused.Chapter 2-“Procedures for the application of the leniency system for admitting guilt and accepting punishment in felony cases”.This chapter focuses on the procedural setting of the leniency system for admitting guilt and accepting punishment in felony cases.The author firstly examines the procedure of applying the leniency system in felony cases.By analyzing the pending custody,procedure application,and case appeals of the system applied to felony cases,then finds that there are defects and problems in current litigation procedures when applied to cases of felony confession and punishment.Specifically,there are problems such as the lack of negotiation mechanism between prosecution and defense,the defects in design of trial procedures,and the insufficiency of second-instance procedures when the procedure is applied to cases of felony confession and punishment.On the basis of examining the procedural settings of the plea bargaining system in the United States and the plea bargaining system in Germany,the author proposes to construct the negotiation procedure for prosecution and defense,optimize the trial procedure of the court and improve the procedure of the second instance in order to adapt to the application of the system in felony cases.In the context of admitting guilt and accepting punishment for felonies,the necessity of negotiation,the basic composition of negotiation and the specific procedures of negotiation need to be clarified when constructing the negotiation procedure for prosecution and defense;it is necessary to reform the pretrial conference and improve the court trial procedure,and standardize the conversion of simplified trial procedures to ordinary procedures when optimizing the court trial procedure;the appeal procedure should be improved and the appeal procedure should be further standardized when perfecting the second-instance procedure.Chapter 3-“Sentencing recommendations for the application of the leniency system for admitting guilt and accepting punishment in felony cases”.This chapter focuses on the issue of sentencing recommendations for the application of the leniency system for admitting guilt and accepting punishment in felony cases.Under the reform of the leniency system for admitting guilt and accepting punishment,the sentencing proposal is endowed with new content.First of all,the sentencing recommendation proposed by prosecutors includes two forms: exact sentencing recommendation and range sentencing recommendation.In the cases of felony confession and punishment,the prosecutor should adhere to the principle of “the range of punishment is the main and the precision punishment is the auxiliary” when proposing the sentencing recommendation.Secondly,in the case of confession and punishment,the sentencing recommendation is not only the specific form of the right to request punishment,but also the punishment proposed by parties of prosecution and defense.Thirdly,as the "application for punishment" of the prosecutor,the sentencing recommendation generally cannot have binding force on the sentencing judgment of the court.In the current judicial practice,the system of the leniency system for admitting guilt and accepting punishment is mainly based on the suggestion of range sentencing,the procurator puts forward the suggestion of sentencing according to its power and the adoption rate of the suggestion is higher.These characteristics reflect the problems existing in the sentencing recommendation,that is,the sentencing result does not meet the expectations of the defendant,the lack of negotiation between the prosecution and the defense on the sentencing recommendation,and the formalization of the review of the sentencing recommendation by the court.In view of the problems existing in practice,the author suggests that it can be solved by strengthening the charge and defense negotiation of sentencing recommendations and clarifying the review content of sentencing recommendations.The concrete measures to strengthen the negotiation of sentencing recommendations include improving the sentencing guidelines,reforming the forming methods of sentencing recommendations and establishing the precise mechanism of sentencing recommendations classification;to clarify the review content of sentencing recommendation requires the court to strengthen the review of the entity and procedure of sentencing recommendation in the process of trial;to improve the adjustment rules of sentencing recommendation,it is necessary to clarify the adjustment rules of sentencing recommendation when the court considers the sentencing inappropriate and the defense raises objections to the sentencing objection,as well as the specific circumstances under which the court makes a direct decision.Chapter 4-“Lawyers’ help in the application of the leniency system for admitting guilt and accepting punishment in felony cases”.This chapter focuses on the protection of the rights of the accused who apply the leniency system for admitting guilt and accepting punishment in felony cases.In cases of felony confession and punishment,in order to effectively protect the legitimate rights and interests of the defendant,it is necessary for lawyers to provide effective legal help.In the current cases of leniency system for admitting guilt and accepting punishment in China,duty lawyers play a limited role,and defense lawyers are absent and inefficient defense,which make it difficult to effectively protect the defense rights of the accused.In view of the problems existing in practice,the author suggests that the problems need to be solved by rebuilding the duty lawyer system,constructing an effective defense system and introducing a compulsory defense system.First of all,rebuilding the duty lawyer system,it is necessary to reposition the duties of the duty lawyer,and make it clear that the duty lawyer is a special legal aid lawyer whose main responsibility is to provide emergency legal assistance to the accused.The main measures are to improve the litigation rights of duty lawyers,to improve the right to meet,to reform the right to review files and to expand the right to be present.In addition,it is also necessary to clarify the specific conditions and legal procedures for duty lawyers to be full-time defenders.Secondly,when discussing the construction of an effective defense system,the author determines the specific standards of effective defense in the context of the leniency system for admitting guilt and accepting punishment by drawing on the review and judgment standards of effective defense in the plea bargaining system in the United States.In addition,in order to ensure the realization of effective defense,it is also necessary to establish a guarantee mechanism,which includes to improve the protection of lawyers’ rights in practice and to improve the mechanism for adopting lawyers’ opinions. |
