The Construction Of Sentencing Recommendation In China

Sentencing recommendation has been fully tried in the country, but, institution of recommendation sentencing is still in ceaseless exploration in a lot of aspects. In order to bring the functions of institution of sentencing recommendation into effectively play, drive it benign to operate, this article adopts methods such as induction , analysis , comparison to launch comparatively all-round and institutionatic analysis and research that involving the background ,justification, validity, feasibility and the practice circumstances of institution of sentencing recommendation. The main body of this article contains three parts, about 30,000 characters.First part spreads out based on the issue on the background and necessity of construction of institution of sentencing recommendation, emphasizing social necessity, to solve the problem of wherefore to construct institution of sentencing recommendation. To begin with, from the law level, social level and political level to analyse the legal background, the social background and political background respectively. Then, from prompting judicial justice ,keeping within limits of judicial corruption ,perfecting People's Procuratorate's functions of public prosecution and supervision ,improving public prosecutors'comprehensive talents respectively to expatiate the necessity of constructing institution of sentencing recommendation.Second part spreads out based on the justification, feasibility of construction of institution of sentencing recommendation, solving the problem of by what to construct institution of sentencing recommendation. Above all, this thesis regards that sentencing recommendation is certain content of public prosecutive power of People's Procuratorate, meanwhile, present law contain recessive provisions about sentencing recommendation, so ,it is believes that there is academic and practical justification. Next, this article demonstrates the feasibility of institution of sentencing recommendation from three aspects that are the abundant practice basis, the extensively social basis of pervasively public support and recognition and the realistic basis that it is easy to practice with little impingement to benefit of institution of sentencing recommendation.Third part mainly analyses the specific contents of institution of sentencing recommendation, solving the issue of how to construct institution of sentencing recommendation. In the first place, this article makes an argumentation on the condign modality, it contains eight aspects. Firstly, the applicable scope of sentencing recommendation. Secondly, the main body of lodging sentencing recommendation. It holds that People's Procuratorate should be the exclusive main body of lodging sentencing recommendation. Thirdly, the decisive mechanism of sentencing recommendation. It believes that it should distinguish circumstances of cases, combining with the institution of chief procurator, to determine which one to make sentencing recommendation ,the dependent chief procurator or the president of People's Procuratorate or the procuratorial committee of the People's Procuratorate. Fourthly, the time of lodging sentencing recommendation. It holds that it shall make different management in according with different procedure of trial. During summary procedure, sentencing recommendation should be put forward at the time of lodging the bill of prosecution. In cases tried through ordinary procedure with guilty defence, the sentencing recommendation should be put forward when public prosecutor stating prosecutive opinions in the part of debating in court, while in cases tried through ordinary procedure with innocent defense, the sentencing recommendation should be put forward after the procedure of conviction but before the sentence procedure. Fifthly, the way of lodging sentencing recommendation. It believes that written form should be a principle while the oral form shall be an exception. Sixthly, the content of sentencing recommendation .It believes that there shall be content of suggestion and content of argument in the whole, and the content of suggestion should be absolutely definite about the kind of penalty while the quantity of penalty should be comparatively definite. Seventhly, the consequences of sentencing recommendation. This article deems that sentencing recommendation have no direct restriction on judges, but there is indirect restriction . Eighthly, the entitative criterion of sentencing recommendation. It deems that there should be linkage among the Supreme People's Procuratorate, People's Procuratorate at the level of province and sub- province, to form the entitative criterion of sentencing recommendation. In the second place, this article has made a brief analysis on the necessary mechanisms assorted to the construction of institution of sentencing recommendation, involving institution of evidence discovery , dependent sentencing procedure, institution of argument of sentencing recommendation, examinatorial mechanism of sentencing recommendation, institution of investigation of sentencing , institution of legal aid.