Sentencing Defense System Research

The general principles of the"Criminal Procedure Law of the People's Republic of China " use a whole chapter to legislate the defense and agency related content. In addition, the"Lawyers Law of the People's Republic of China"detailed legislates the relevant rights of the lawyer. Visibly, the right of criminal suspects or defendants is taken extremely seriously in China's laws. However, due to the imperfect system, the loopholes of the law, the incompatible practical operations, and so on, a lawyer often faces a lot of problems, such as hard to meet criminal suspects or defendants, hard to read case files, hard to investigate and collect evidence, hard to apply for alteration compulsory measures, hard to make the judge believe the opinion of lawyers, hard to protect the lawyer's rights. Our criminal defense has been dragging his feet on it. With the propelling reform of China's sentencing system entity and procedures, and gradually difference between conviction and sentencing, there is a breakthrough to develop the criminal defense system. Consummation of Sentencing defense system can relieve the criminal defense problems, and provide new vitality to develop criminal defense. This paper investigates the current legal condemnation and sentencing procedure reform appeared in "relatively independent sentencing procedure" and "isolation type sentencing procedure" in the present situation and shortage of sentencing defense, referring to defend the law outside the sentencing, pertinently advanced ideas, improving suggestions for sentencing defense, which may provide the theory and implementation to form independent defense.This paper contains four parts besides the preface and epilogue, a total of around than 36,000 words:Chapter one, the overview of sentencing defense. This chapter is divided into three parts. The first part, defining sentencing defense, the second part, the main content of sentencing defense, the third part, properties of sentencing defense. In a word, this chapter provides basic theory for the following further discussion.Chapter two, the introduction to the theoretical basis of sentencing defense. This chapter is divided into three parts, mainly including the due process, punishment individualized and sentencing discretion control. In this paper, we suppose that sentencing defense is an independent defense pattern. So, we can find the theoretical basis of sentencing defense. First, sentencing defense as the criminal defense system a necessary part of the procedural justice, reflects the value basis of equal confrontation and Sentencing defense is an inevitably participation of"Program participation"in the sentencing procedure. Second, punishment individualized theory emphasizes that the measurement of penalty base on the specific circumstances of case, especially the social risk and the personal risk in case. But if there is not third-party solely responsible for collecting the sentencing information, sentencing information collection and finishing need the defense's participation, which needs safeguard from a court-appointed sentencing defense system. Third, sentencing discretion aims to make sentencing exercise administrative umpirage based on criminal law of sentencing principles by judge and punishment extent practice and realized. In order to ensure the sentencing discretion correct, the solid and procedures should be restricted. Sentencing defense system gives court-appointed the right to participate in sentencing. By the way, it could limit the discretion of the judge sentencing to realize the sentencing justice in some extent.Chapter three, the current situations of sentencing defense in China. This chapter is divided into two parts. The first part, introducing the current situations of sentencing defense under the legislation mode in China. There is no difference between convicting and sentencing in provisions of the laws and judicial interpretation. The sentencing defense becomes a tool for convicting. And court-appointed sentencing has no effect. The second part, focus on "relatively independent sentencing program" and "isolation type sentencing program" appeared in the present sentencing reform, and analyze the advantages and disadvantages of the two kinds of reforms in the sentencing defense. The reform of sentencing program brings independence and development to c defense. However, because conviction is not completely separated from sentencing, there are many contradictions in the judicial practice. Therefore, if sentencing defense system in China will become more perfect, it should base on complete separation between conviction and sentencing.Chapter four, China's sentencing defense system consummation. This chapter is divided into four parts. The first part, introduce foreign law related tent, detailed describing the experience of sentencing defense in common law countries (the United States and Britain) independent sentencing program and civil law countries (Germany and France) mixed sentencing program, respectively. After the comparison and analysis, the author thinks that the separation of conviction of Anglo-American law system is conducive to sentencing defense system development. Therefore, in the following parts, the author discuss sentencing defense system consummation based on constructing independent sentencing program, and on the basis of sentencing defense system around the macro design, micro design and related security system. First, macroscopic aspect, on the one hand, clear and definite the sentencing rights to defendant, on the other hand, by establishing the shunt system, the process is divided into the summary procedure case , Simplified trial ordinary procedure case and the defendant not guilty of ordinary procedure case, and the whole process is arranged briefly. Then, the author expounds the detailed design of microscopic aspects as following: determining the direction of defense after scoring, meet, investigation, collecting and sorting sentencing information, disproof and proof in sentencing procedure, making the sentencing submissions. And deeply discuss the practice of the defense during the sentencing defended. Finally, I discuss the related security system consummation around "constructing independent sentencing procedure", "complete legal aid system" and "the defendant social survey system", which provide the condition of survival and development for sentencing defense system.