Research On The Protection Of The Right To Defense In The Case Of Leniency Of Guilty Plea

The modern idea of criminal procedure holds that the equal confrontation between the prosecution and the defense is conducive to the investigation of truth.In criminal proceedings,the prosecuting authorities,such as investigation and public prosecution authorities,which represent the public power of the state,have a naturally strong position,while the accused are in an obvious weak position.To solve this dilemma,the state constantly promotes the reform of legislation,so as to achieve the basic balance of the power between the two sides as much as possible by providing "equal arms" for the defense.In the case of leniency of guilty plea,the prosecuted person voluntarily cedes part of the defense right and reaches an agreement with the prosecution on the charges in order to obtain a predictable and relatively certain reduction in penalty.Since this system is characterized by negotiation,ensuring that the prosecuted person participates equally in the negotiation as a "rational person" by himself or his legal representative constitutes the justification basis of the lenient system of guilty plea and punishment.Due to the imperfection of the relevant provisions for the protection of the defense right in the current cases of leniency of guilty plea,the litigation status of the prosecuted party tends to be more disadvantaged,and the imbalance between the prosecution and the defense will be more prominent.To some extent,the situation that the prosecuted person can only passively accept the charge of the procuratorial authorities is relatively common.Generally speaking,the protection of the defense right in the case of leniency of guilty plea is not fully up to expectations.Therefore,this thesis starts from the basic connotation and empirical research of the protection of the defense right in the case of leniency of guilty plea,analyzes the causes of the insufficient protection of the defense right,reflects on the relevant theoretical issues,and draws on the relevant experiences and practices from abroad from the perspective of comparative law,and then puts forward the countermeasures,suggestions and realization path to improve the protection of the defense right in the case of leniency of guilty plea.This thesis consists of an introduction and four chapters.The introduction part introduces the background of the research of this thesis,makes a brief review of the current research on the protection of the defense right in the case of leniency of guilty plea at home and abroad,and puts forward the general idea of using the methods of empirical research,comparative research and comprehensive application of legal research to study the protection of the defense right in the case of leniency of guilty plea.The first chapter is an overview of the protection of the right of criminal defense in the case of leniency of guilty plea.Firstly,it introduces the basic principles of the protection of the right of criminal defense,including the theoretical basis of the system,the main content of the right,the basic value of the right protection,and so on.Secondly,based on the practices of the protection of the defense right in the cases of leniency of guilty plea handled by the judicial authorities in District H,the author sort out the legislation and judicial interpretation of the defense right protection in the case of leniency of guilty plea,introduce the situation of the exercise of the defense right in the case of leniency of guilty plea and the situation of the protection provided by the case-handling authorities in this region.Among them,since the cases applying fast-track sentencing procedures are typical in the case of leniency of guilty plea,which can reflect the basic orientation of lenient system of guilty plea and punishment to a considerable extent,this part focuses on the empirical analysis of the situation of exercising the defense right and the protection of the situation in the handling of cases applying fast-track sentencing procedures.Finally,on the basis of the foregoing analysis,this thesis discusses the litigation values of the protection of the defense right in the case of leniency of guilty plea.First,the protection of the defense right ensures the voluntariness of confession.A perfect voluntary guarantee mechanism for confession is the premise and foundation of lenient system of guilty plea and punishment.Only when the accused makes a confession with wisdom and knowledge can the application of this system be reasonable and legitimate.Second,the protection of the defense right ensures the fairness of punishment.It is the foothold for the leniency system that the prosecuted person is willing to accept the corresponding punishment and implement it positively.However,justice is the soul and lifeline of justice.If the recommendation on conviction and sentencing of the procuratorial authorities violates the standard of justice,the legitimate basis for the operation of the lenient system of guilty plea and punishment will no longer exist.Third,the protection of the defense right ensures the effectiveness of the consultation of the prosecution and the defense.It is the basic logic for the normal operation of the system that the prosecution and the defense reach an agreement on conviction and sentencing through effective negotiation.Based on the consideration of the disparity in negotiation abilities,this thesis holds that the effectiveness of negotiation can be ensured only by giving adequate means to protect the defense right and effectively improving the abilities of the accused to negotiate with the prosecution.The second chapter concentrates on the causes of insufficient protection of the defense right in the case of leniency of guilty plea.First of all,the operation effect of the traditional criminal defense system is unsatisfactory.Although since the amendment of the Criminal Procedure Law in 2012,the criminal defense system has been greatly developed,and the protection level of the defense right has been gradually improved,compared with the requirements of due process of law for human rights protection and the judicial needs of the accused,there is still a considerable gap.The overall defense coverage rate is still on a low level and a significant number of people prosecuted do not have access to defense counsel;The effect of the exercise of the right to defense is not ideal.No matter the defendant defends by himself or is represented by a duty lawyer or a defense lawyer,the effect is relatively limited in essence.The poor effect of the criminal defenseis reflected in the embarrassing situation of innocent defense or defense for misdemean in the trial stage of the case of leniency of guilty plea,and the low success rate of effective defense,and so on.Secondly,the reason why the protection of the defense right in the case of leniency of guilty plea is not good is that the exercise of the defense right in this kind of case faces a new pattern.First,the defense mode has changed from the adversarial mode to the negotiation mode.The traditional defense mode,which use offense and defense as the main means,is no longer feasible in the case of leniency of guilty plea.Second,the field in which the defense plays a role has changed from the trial stage to the stage of procuratorial authorities’ examination and prosecution;Third,the main subject of defense has changed from entrusted lawyers to legal aid lawyers(including duty lawyers).The change of defense subject may also lead to the differences in the effect of defense.Finally,the most critical reason for the lack of protection of the defense right is the character confusion and conflict between the responsibility of procuratorial authorities and the protection responsibility of the defense right stipulated by the law.The main duty of the procuratorial authorities in the criminal procedure is to charge the defendant,which is also true in the case of leniency of guilty plea.At the same time,the lenient system of guilty plea and punishment clearly strengthens the obligation of case-handling organs,including procuratorial authorities,to safeguard the defense right,which is in conflict with the charge responsibility of procuratorial authorities.In the case of leniency of guilty plea,the procuratorial authority is the dominant player in the application and promotion of the procedure,and the prosecuted person has no right to start the procedure,which is inconsistent with the subject status of the prosecuted person.The procuratorial authority makes sentencing recommendations based on facts,evidence and legal provisions,while the prosecuted person can only give opinions of agreement or disagreement,usually without the right to put forward specific opinions on his own sentencing.Compared with ordinary cases,the equal confrontation between the prosecution and the defense in the cases where the defendant admits guilt and accepts punishment has particularly prominent theoretical significance and practical value.By weakening the advantageous position of the prosecution and enhancing the defense abilities and enabling both sides to conduct full and effective negotiation on the premise of equal strength,the charges can better stand the test of law and facts,the procedural subject status of the accused can be fully highlighted,and the formation of litigation conclusion will fully reflect the free will and true intention of the accused,thus the pluralistic value pursuit of lenient system of guilty plea and punishment will be maximized.The third chapter concentrates on theoretical reflection and extraterritorial reference on defense right protection in the case of leniency of guilty plea.The first part of this chapter is to analyze and demonstrate the multiple value and legitimacy basis of the defense right protection.Firstly,in those cases,due to the fervent pursuit of efficiency value,the rapid promotion of the procedure and the quick formation of the litigation conclusion,and due to the institutional defects or human factors,there is an objective possibility that the rights and interests of the accused may be damaged,Therefore,the rights to defense should be protected effectively to ensure the justice of the judgment.Secondly,while the person prosecuted belongs to the procedural subject in the meaning of the procedural law,only by transforming their claim of rights into the legal responsibility of the authority can the litigation goal of the system be better realized.Thirdly,the lenient system of guilty plea and punishment requires both justice and efficiency,which not only ensures the authority’s right to speak on litigation,but also converts the claims of the accused into obligations of the authority.In this process,the effective exercise and practical protection of the defense right defense right has become an important premise to realize the balance of value,which must not be ignored.The second part of this chapter also makes a comparative study of the protection of the defense right in the relevant confession procedures outside the region.As for the protection of the litigant-oriented defense right under the common law system,it is a constitutional right to obtain sufficient lawyer’s help which focus on maximizing the interests of the litigant as the core of defense,the defendant is endowed with the right to withdraw his guilty plea.Under the civil law system,the protection of the defense right centered on finding out the truth also strengthens the right of the accused to be defended by lawyers.Besides,it grants lawyers independent defense status,and provides for the right of lawyers to be present.This part also analysis this system in Taiwan region.By comparison,the article puts forward that the protection system of defense right in the case of leniency of guilty plea should be improved based on the national conditions and drawing lessons from extraterritorial experience.Finally,this chapter dialectically considers the reference significance of the concept of "effective defense" to the lenient system of guilty plea and punishment.The effective defense of lawyers is the cornerstone of the institutional guarantee of the lenient system of guilty plea and punishment.The negotiated prosecution and defense relationship first requires the effectiveness of negotiation,and whether the negotiation is effective depends on the effectiveness of the defense or legal help obtained by the accused.In the case of leniency of guilty plea,the effective defense should set the standard which is different from the ordinary case.Only when the corresponding conditions are met,can the real effective defense be realized.The fourth chapter puts forward the specific paths of defense right protection in the case of leniency of guilty plea.First,we need to further strengthen the concept of rights protection,including reshaping the judicial personnel’s concept of procedural rule of law,building the bottom line consciousness of rights protection,reaffirming the concept of relative equality between the prosecution and the defense,strengthening the institutional constraints on the power of the prosecution and the establishment of rights protection obligations,straighten out the relationship between "power restricting power" and "power guaranteeing rights".Second,as the core and key of the defense right protection,it is important to improve the working mechanism for duty lawyers to provide substantive legal help.It is necessary to clarify the position of the duty lawyer as a "defender",establish the standard for the duty lawyer to provide effective legal help as well as guarantee mechanism for duty lawyers to participate,optimize the work norms for duty lawyers to participate in litigation and provide legal help in the whole process,and maximize the role of duty lawyers.Third,we need to setup a mechanism to guarantee the right of the accused to be defended by a lawyer.It is suggested to establish a compulsory defense system with duty lawyer as the main body in the case of leniency of guilty plea and optimize the working mechanism of legal aid to guarantee mechanism for legal aid lawyers to perform their duties diligently.By strengthening the protection obligation of the authorities,the function of defense will be strengthened Fourth,we should promote substantive consultations between the prosecution and defense parties.Effective negotiation is the justification premise of the lenient system of guilty plea and punishment.It is necessary to formulate corresponding safeguard measures according to the procedural subject status of the accused,improve procedural rules in line with the actual negotiation of prosecution and defense,clarify the scope of negotiation of prosecution as well as defense,establish the information disclosure obligations of both sides.Finally,the substantive review of the case of leniency of guilty plea by the court should be strengthened.It clarifies several principles that should be adhered to in judicial review of guilty plea cases,focusing on examining the authenticity,voluntary nature,procedural legality and standardization of guilty plea,and strengthens the examination of the appropriateness of sentencing suggestions.In general,the problem of insufficient protection of the defense right in the case of leniency of guilty plea involves not only the imperfection of the system,but also the lack of concept and the anomy in judicial practice,which contains the risk that the voluntary nature of guilty plea and the fairness of case handling are difficult to be guaranteed,and which will restrict the effective application and healthy development of the lenient system of guilty plea and punishment to a certain extent.It needs to be studied and solved seriously as a long-term problem in the course of criminal justice reform.