| The establishment of the system of leniency on admission of guilty and acceptance of punishment is the most profound historical change in China’s criminal justice practice in recent years,and has contributed the "Chinese solution" to the construction of the criminal justice system in the Chinese-style modernization.Rooted in the criminal justice practice of China,the system of leniency on admission of Guilty and acceptance of punishment is in line with the changes in the criminal structure and the development trends of the criminal litigation system in the new era,demonstrating distinctive theoretical innovation and broad practical applicability.The establishment and operation of the leniency system for pleading guilty and admitting guilt has greatly changed the criminal litigation pattern in China,and has had significant impacts on the philosophy,mechanism,structure,and model of criminal litigation in China.Currently,the application rate of the system of leniency on admission of Guilty and acceptance of punishment in China has stabilized at over 85%,making it the new norm of criminal litigation.As various interest reorganizations and conflicts emerge alongside the rapid transformation of the economic society,the system of leniency on admission of guilty and acceptance of punishment has directly advanced to the "fourth paradigm" in a situation where the development of the "third paradigm" is not yet sufficient,inevitably leading to a painful,adjustment and adaptation period.This is also reflected in the tripartite relationship between prosecution,defense,and judgment,which is the core of criminal litigation.In this article,the author intends to focus on the tripartite relationship between prosecution,defense,and judgment in the leniency system for confession and punishment,place it in the theoretical dimension of criminal litigation structure and the historical dimension of criminal litigation paradigm transformation,systematically sort out the various problems that exist,and deeply analyze the causes of the problems.The article provides targeted countermeasures and suggestions that have both theoretical value and practical guidance.The article consists of five chapters,apart from the introduction and conclusion.Chapter One: The Structure and Principles of Criminal Procedure.If the structure of criminal procedure is the theoretical basis for studying the relationship between the prosecution,defense,and the judiciary,then the principles of criminal procedure are the guideposts for studying this relationship.These principles play a role in guiding and correcting the relationship between the prosecution,defense,and the judiciary under the leniency system for guilty pleas.This chapter is divided into three sections,which,on the basis of introducing relevant theories of the structure of criminal procedure,elaborate on the axiomatic principles within the structure and the policy principles that may have a significant impact on the relationship between the prosecution,defense,and the judiciary in China’s criminal procedure.On this basis,standards for examining the relationship between the prosecution,defense,and the judiciary under the leniency system for guilty pleas are established.The structure of criminal procedure primarily refers to the basic method of conducting criminal procedure and the fundamental legal relationships that form between the prosecution,defense,and the judiciary.The study of the structure of criminal procedure has a long history,including Parker’s crime control model and due process model,Griffiths’ struggle model and family model,Damaska’s adversarial and non-adversarial models,and layer and collaboration models.Each model represents a set of values,and sometimes the values represented by different models are even contradictory.The leniency system for guilty pleas,as a consensual litigation model,is also inevitably subject to certain values.The principles of criminal procedure are the guidelines that should be followed in criminal procedure legislation and judicial practice,reflecting the philosophy and purpose of criminal procedure and specifically guiding and regulating the institutional,procedural,and regulatory construction of criminal procedure.As a reflection of the inherent laws and characteristics of the criminal procedure mechanism,the principles of criminal procedure have axiomatic significance,such as the separation of prosecution and trial,judicial neutrality,and the equality of the prosecution and defense.In addition,the axiomatic and universal nature of the principles of criminal procedure does not deny inclusiveness,and there may still be differences in content brought about by temporal,spatial,and cultural backgrounds,reflecting a country’s social and cultural values during a particular historical period,such as the principle of coordination and restraint and the principle of prosecutorial supervision in China.The above principles of criminal procedure play a role in guiding and correcting the leniency system for guilty pleas in China,further improving and perfecting it.Chapter Two: The Theoretical Basis and Construction Principles of the system of leniency on admission of guilty and acceptance of punishment.The theoretical basis and construction principles of leniency for confession and punishment have shaped the system of leniency on admission of Guilty and acceptance of punishment,and determine the tripartite relationship between control,defense,and trial.This chapter is divided into three sections.Firstly,starting with the paradigm shift in criminal proceedings,it introduces the history and international background of China’s leniency for confession and punishment system,and points out that this system was established under the temporal and spatial conditions of the "fourth paradigm" composed of different types of "waiver of trial systems",developed from the "first paradigm" of impeachment-style litigation,the "second paradigm" of interrogation-style litigation,the "third paradigm" of inquisitorial-style litigation,and the "adversarial-style litigation".Secondly,from the perspectives of teleology,efficiency,justice,and truth,this chapter discusses the theoretical basis or legitimacy foundation of China’s leniency for confession and punishment system.From the perspective of teleology,it can be regarded as a return to criminal proceedings as a way to resolve social conflicts,shift from punishment to governance,and enhance the state’s governance system and capabilities.From the perspective of efficiency,it also reflects the reality of judicial resource constraints.From the perspective of justice,it embodies the further promotion of the litigant’s status,respect for the rights of victims,and the values of individual and discretionary justice in modern society.Under the trend of the "truthful consensus theory" replacing the "truthful conformity theory," "truth" is a fragile beauty,especially in criminal proceedings,and the willing truth is based on the logic of "willingness is justice".Finally,the construction of the system of leniency on admission of guilty and acceptance of punishment follows the general principles of the consensual litigation model,such as the trial center,as well as considerations based on its own national conditions,such as the prosecution-led system.The trial center is a general principle of criminal proceedings,and the reform of the leniency for confession and punishment system is also born out of the trial-centered litigation system reform and is a "result" of its complementary reform.Equality,negotiation,and sincere communication are the legitimacy of the consensual litigation model,as well as the most distinctive institutional characteristics that distinguish it from other litigation models.Of course,the choice of control-defense negotiation rather than trial-defense negotiation is also based on the consideration of the national conditions of China.The prosecution-led system has become the most distinctive institutional feature of the system of leniency on admission of guilty and acceptance of punishment,although there may still be a long way to go in dealing with the problem of how to balance it with the trial center.Chapter Three: Imbalance and Balance.The Relationship between Prosecution and Defense in the Leniency System.This chapter is divided into three sections.Starting from the three "paradigms" of imbalance in prosecution and defense,this chapter points out the "hidden concerns" of imbalance in prosecution and defense,and proposes "systematic prevention" measures based on a thorough analysis of the "structural risks" in prosecution and defense relationships."Imbalance" and "Balance" become a pair of key words describing the relationship between prosecution and defense in the leniency system.In leniency cases,there are various imbalanced "paradigms," such as "listening to opinions," "making decisions in secret," and "confirming and approving." The problem of imbalance between prosecution and defense is not unique to the leniency system,but has long existed in ordinary criminal litigation procedures.However,due to the unique litigation structure of the leniency system,there may be greater risks of deviation from the principle of justice compared to ordinary criminal litigation procedures.This may affect the authenticity of the prosecution-defense agreement and the binding force of the sentencing recommendations as a carrier of the agreement,ultimately affecting the healthy development of the leniency system.The problem of imbalance between prosecution and defense in the leniency system is influenced by traditional litigation concepts,such as the obligation-based,power-trusting,"weighting power over rights," "emphasis on punishment over protection," and "emphasis on substance over procedure" that already exist in China’s criminal litigation procedures;inherent factors such as information asymmetry and resource inequality between the "prosecutorial side" and the defense side,high detention rates,low defense rates,and the special status of the Chinese procuratorate’s legal supervision;and "acquired defects" such as the confusion of power-based and negotiable logic in the design and application of the leniency system.The vulnerable position of the accused in the leniency system is a reflection of their lack of litigation rights in ordinary criminal litigation procedures.To move from imbalance to balance,it is necessary to transform traditional concepts from the perspective of modern times,such as from the state-based to the citizen-based sovereignty principle,emphasizing procedural values and paying particular attention to the adverse effects that the agreement-type litigation model may have on procedural justice,and transforming from a lenient and severe criminal policy to a policy of cautious investigation,prosecution,and detention.It is also necessary to "systematically correct" the "structural risks," which,in addition to further promoting the establishment and improvement of the presumption of innocence,the right to remain silent,the defense system,and the rules of evidence,must also establish targeted safeguard systems that combine the criminal litigation model from the adversarial model to the agreement-type model,such as the establishment of duty lawyers,the right to review case files,the disclosure of evidence,and the simultaneous recording of opinions.Regarding the correction of the leniency system,it is necessary to further demonstrate the dominant role of negotiable logic while also taking into account the role and function of power-based logic.For the procuratorate,the greater the power and responsibility,the more important it is to fulfill the objective and impartial obligations of a litigant.For the court,it is necessary to avoid intentional confrontation,fully respect the binding force of the prosecution-defense agreement in the design of the system,and avoid passive acceptance,and fully exert the regulatory role of the backend in the prosecution-defense relationship.Chapter Four: Zero-Sum Game and Nash Equilibrium in Plea Bargaining.The Relationship between Prosecutors and Judges under the Leniency System.This chapter is divided into three sections.Firstly,using game theory to extract practical examples of the imbalance of the prosecution and adjudication relationship.Secondly,analyzing the causes of the problem from a practical dimension.Finally,returning to game theory to predict future trends.Game theory can provide insight for those who want to understand how the law influences people’s behavior.The alienation of the prosecution and adjudication relationship in the actual state can be described as a "zero-sum game",the consequences of which are significant sacrifices of the defendant’s interests,the credibility of the system,and even the judicial authority.Due to the differences in specific content,job nature,and operational objectives of various competent authorities,multiple conflicts of values are unavoidable.However,in the ideal state,after a period of severe turbulence,the relationship between prosecution and adjudication must reach a Nash equilibrium state,otherwise,such a system arrangement will be difficult to establish.From a typological perspective,the "zero-sum game" between prosecutors and judges includes positive conflicts that are extremely evident,such as the "Yu Jinping Traffic Accident Case," negative conflicts characterized by "prosecutorial dominance" in "China’s version of prosecutorial justice," and a "passive" conflict where judges "follow the lead" of prosecutors and take the "collect them all" approach.The conflict between prosecutors and judges under the application of the leniency system involves conflicts of concepts,rights and responsibilities,and questioning of consent and capacity.Conceptual conflicts mainly refer to the conflict between "prosecutorial dominance" and "trial-centeredness".The leniency system is the "cause" and "result" of the trial-centered litigation system reform.The leniency system,as a supporting measure for the trial-centered criminal litigation system reform,was established in the continuous deepening of the trial-centered litigation system reform.However,due to the special construction of the leniency system in China,where "sentencing recommendations should generally be made" and "should generally be adopted," "prosecutorial dominance" has become the most prominent feature of China’s criminal justice in the new era.The conflict of rights and responsibilities mainly refers to the shift of the focus of litigation under the leniency system,resulting in "prosecutorial judicial decision-making," but the ultimate judicial responsibility still falls on the judge,resulting in a clear imbalance between power and responsibility.In practice,the conflict between prosecution and adjudication also manifests in judges’ questioning of consent and capacity,mainly referring to whether the sentencing recommendation made by the prosecution truly reflects the consent of the parties,and if not,why it has procedural and substantive constraints on the judge? Does the prosecution have the ability to make sentencing recommendations,and if not,should it still be presumed that the judge accepts them? The current conflict between prosecution and adjudication is only a stage-specific rejection phenomenon in the early establishment of the leniency system.In the long run,the ultimate result will be that both sides compromise and reach a tacit understanding in a continuous process of trial and adjustment,so that the prosecution and adjudication relationship is in a Nash equilibrium state,reaching a "new normal."To this end,the prosecutorial authorities should transcend the "power struggle" over power allocation and focus on the grand narrative of promoting the modernization of the national governance system and governance capacity,and work together to promote the realization of the true value goals implied in the leniency system for confession and punishment.This not only refers to the reference between the prosecutorial authorities in the consultative judicial system outside the jurisdiction,but also the reality determined by the situation of fewer cases and changing criminal structures.It also focuses on the prospect that after a period of time,the sentencing tends to be refined and standardized,and the proposal by the prosecution to determine the sentence is not only helpful in alleviating the judge’s work pressure but also does not encroach on the discretion of the judge.From a normative perspective,the setting of the "generally should be adopted" clause is not only understandable but also necessary.Without it,the leniency system for confession and punishment would be difficult to operate effectively.Most importantly,the leniency system for confession and punishment is an organic component of the socialist judicial system with Chinese characteristics.As the prosecution authorities under the leadership of the Party,they have a common mission of "strengthening communication,coordination,and cooperation","forming a joint force to implement it," and maintaining social harmony and stability based on their respective responsibilities.On this basis,on the one hand,the court should keep up with the times,"accept and enjoy" the era transformation of China’s criminal procedural model,but at the same time,it should also "refuse to lie down".On the other hand,the prosecution should also prevent being "too emotional" and exerting excessive force,maintain restraint,and leave some time for its own capacity enhancement and better acceptance by the court.To alleviate the conflict between control and review,in addition to the philosophical "bidirectional efforts," it is also necessary to combine "blocking and dredging." A judge’s mechanism for relinquishing responsibility matching the power reconstruction needs to be established.As a "social person," responsibility is directly related to behavior,which in turn affects the realization of the original intention of the system.If a wrongful case occurs in the leniency system for confession and punishment,legal responsibility should still be investigated.Based on the principle of disciplinary power of the accused,if the accused voluntarily "takes responsibility" and causes a wrongful case,he or she should bear the main responsibility.Based on the consistency of rights and responsibilities,corresponding responsibilities should be assumed according to the role played by the subject in the leniency system for confession and punishment.Therefore,the mechanism for relinquishing responsibility should be further clarified from the two points of whether the main body of power has fulfilled its duty of prudence and whether there is corrupt behavior.In addition to exploring the establishment of an evidence disclosure system,safeguarding the right of the accused to review the case files,better playing the role of duty lawyer,reducing the detention rate of leniency cases,emphasizing the objective and impartial obligations of the prosecutor,and strengthening the judge’s examination of voluntariness and wisdom during the trial stage,the construction of leniency case systems should also be further strengthened.Various types of cases should be fully utilized to enhance the authenticity of control and defense agreements and to improve and standardize the sentencing ability of the prosecution.Further,on the basis of integrating existing resources,a special "Guidelines for Lenient Sentencing for Confession and Punishment" can be developed to strengthen the standardization of sentencing.The role of sentencing reasoning in resolving control and review conflicts should be fully utilized.When the prosecution proposes a sentencing suggestion,it should explain the reasons and basis.If the court does not adopt the prosecution’s sentencing suggestion,it should also explain the reasons and basis。In addition,We shoudl further improve the system of simultaneous audio and video recording for listening to opinions.Chapter Five: Negotiation or Collaboration.The Role of Adjudication in the Leniency System of Guilty Pleas.This chapter is divided into three sections.Some scholars believe that China’s leniency system for guilty pleas should move from "prosecutorial and defense negotiation" to "adjudication and defense negotiation." Compared with the unequal power and limited negotiation space between the prosecution and defense in prosecutorial and defense negotiation,adjudication and defense negotiation can be more objective and neutral,and achieve negotiated justice.But is this really the case? In my opinion,there are advantages and disadvantages to both prosecutorial and defense negotiation and adjudication and defense negotiation,and each can be referenced.China’s leniency system for guilty pleas is a practical consideration after weighing the pros and cons.Under the design of prosecutorial and defense negotiation,the defense’s opinions are already included in the sentencing proposal submitted by the prosecution to the court as the carrier of litigation consensus,so the adjudication relationship tends to be marginalized.However,given the risk of non-voluntariness in guilty plea cases,the future trend of adjudication relationship should move towards collaboration in order to effectively protect the voluntariness and authenticity of guilty pleas.The first section,Negotiation: Another Form of Adjudication Relationship in the Consensual Litigation Model.From an external perspective,the consensual litigation model can be divided into prosecutorial and defense negotiation and adjudication and defense negotiation,depending on the negotiating parties.The former is represented by the plea bargaining system in the United States,while the latter is exemplified by the adjudication and defense negotiation in the German criminal conciliation.The plea bargaining system in the United States has always been questioned because of the almost unrestricted power held by the prosecutor,and it is difficult to say that the defendant in the German adjudication and defense negotiation does not feel pressure in front of the judge.Therefore,whether China’s leniency system for guilty pleas should choose prosecutorial and defense negotiation or adjudication and defense negotiation mainly depends on specific national conditions,existing criminal justice system,and legislative value considerations.The second section,Marginalization: The Representation of the Adjudication Relationship in the Leniency System of Guilty Pleas.The ideal trial scenario is one where the prosecution and defense are on an equal footing,the judge acts as a neutral arbiter,and both sides push the trial process forward,with the judge making the final judgment based on persuasion and judgment.Previously,discussions of the adjudication relationship were more focused on the alienated conflict between the prosecution and defense.However,in guilty plea cases,due to the shift in the focus of litigation,there is no longer intense confrontation between the prosecution and defense in the trial,and the defense’s opinion is already included in the sentencing proposal submitted by the prosecution to the court as the carrier of litigation consensus.The judge can only focus on examining the voluntariness of the guilty plea and the authenticity and legality of the guilty plea agreement.The adjudication relationship tends to be marginalized.The third section,Collaboration:The Direction of the Relationship between Plea Leniency and Defense in the Context of the Plea Leniency System.Collaborationism is an important concept in civil litigation aimed at reconciling the relationship between authoritarianism and debate in civil litigation,and promoting judges from passive "spectators" of litigation rules to active adjudicators.Introducing collaborationism in criminal litigation aims to reflect on and reconstruct the tripartite relationship between prosecution,defense,and the court.Specifically,collaborationism can be a useful reference for resolving conflicts in plea bargaining.In the context of the plea leniency system,introducing collaborationism can help to further emphasize the collaborative obligations of judges and defendants,and through the exercise of the court’s powers,play a certain corrective role in the imbalance of prosecution and defense,while better protecting the voluntariness and truthfulness of guilty pleas.Overall,there is a dialectical unity between the leniency system for confessing guilt and accepting punishment and the tripartite relationship among the prosecution,defense,and trial.On the one hand,as the leniency system for confessing guilt and accepting punishment is continuously improved,the tripartite relationship among the prosecution,defense,and trial will also become more scientific and reasonable.On the other hand,the current tripartite relationship among the prosecution,defense,and trial still exposes many problems in judicial practice,and the appropriate resolution of these problems will further promote the continuous improvement of the leniency system for confessing guilt and accepting punishment.The formation of a positive interaction relationship between the two requires technical improvements in some areas,a relatively slow transformation of ideas in others,and an overall transformation of the entire criminal justice system in some cases.As the saying goes,"the real power lies beyond the words of a poem." Experiences from outside the jurisdiction also tell us that the adversarial system of justice largely results from the legalization of criminal proceedings.China’s leniency system for confessing guilt and accepting punishment takes a similar approach to "overtaking on a curve," which poses certain risks since it directly moves toward the "fourth paradigm" without the third being fully developed.Therefore,it is necessary to rely on continuing to promote the trial-centered judicial system reform.Only when cases in which the defendant does not confess guilt are truly substantively tried can the leniency system for confessing guilt and accepting punishment be further improved and better applied,and the tripartite relationship among the prosecution,defense,and trial can ultimately return to rationality. |
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