| Plea-bargaining is a criminal proceeding system originated from the United States.Although this system encountered repeated questioning and resist from the birth of it, it still came to become a mature criminal system with its unique inherent advantages, such as, effectively improving the efficiency of the proceedings, saving judicial resources etc. So far, about 90% of the criminal cases in the U.S.have been disposed with the application of this system. Plea-bargaining wich is rooted in the United States has won wide attention and admiration in the world with its unique advantages, and many countries have transplanted it into their national judicial systems, and as a result, the localized plea bargaining system has received good social effects.This paper elaborated the brief condition of the development and the operational mechanism of the plea bargaining system in the United States, and analized the necessity and feasibility of China's absorption and reference to the system. What's more, the writer also demonstrated objective conditions for China's introduction of plea bargaining system, and designed the scope, conditions and procedures of China's plea bargaining system on the basis of the successful experience learning from abroad. Thereby, the author theoretically demonstrated feasibility for China transplantating and localizating the plea bargaining system.This paper is composed of four chapters.Chapter one outlines the plea bargaining system.Plea Bargaining, also known as the plea bargain or plea agreement, is a very unique criminal system. The United States"Black Law Dictionary"said: plea bargaining means that in criminal cases ,the defendant makes guilt reply to the lesser charge or to one or several of the allegations in exchange for the prosecutor's certain concessions, usually including a lighter sentence, or withdrawal of other allegations. Therefore, plea bargaining is an agreement between prosecutors and defendants.Plea Bargaining originated in the United States and developed and matured there. The practice of plea bargaining began to develop in the United States from the 1930s onwards. In April 1974, the"Rules of Criminal Procedure of Federal District Court"made clear and detailed provisions on the general principles and a series of procedures of disclosure, acceptance, dismissal of the plea bargaining system, and therefore the legal status of plea bargaining has been established in the form of legislation.Chapter two is on the necessity of establishing the plea bargaining system in our country.The establishment of plea bargaining system will improve the efficiency of closing criminal cases. In recent years, the number of criminal cases in our country has been raising year by year, while the judiciary human resources are increasingly scarce, and financial and material resources are also in a relatively tight condition, which severely limited the development of the normal work. Therefore, establishing a quick and easy procedure becomes an option for consideration. Plea bargaining, as a criminal legal system, whose efficiency value reflects two aspects of the process of plea bargaining, that is, economic rationality and plea bargaining effect's meeting the aim.The establishment of a plea bargaining system will help to implement the criminal policies, like,"Frankly leniency". Criminal policy is important content of criminal procedure work, but for a long time,"Frankly leniency, and resist the strict"policy in China's criminal justice practice has not been implemented well. Therefore, in order to implement the criminal policy and cover the mistakes of criminal legislation, it is necessary to establish plea bargaining system in criminal prodeeding law, giving judicial relief to those honest, and the prosecution commitments will be legally binding through the establishment of plea bargaining system, making the "Frankly leniency" criminal law policy a law.The establishment of plea bargaining system will help to safeguard the legitimate rights and interests of victims. A prominent problem in the current judicial practice is that it is hard to timely and effectively safeguard the interests of victims. In the condition that national compensation system has not been established in China, the reference and application of plea bargaining in handling cases will make it possible to fully consider the elements of victims, respect the victims, give them full human care, list wether to actively and fully compensate the victims into the important elements of consultations between the prosecution and the defense, and include the criminal and civil incidental amount of compensation payments in the agreement. There is no doubt that for all the element mentioned above, the interests of victims will be given maximum protection, and the accused and their families will actively seek compensation for the victims in order to obtain a lighter punishment.Chapter three is on the feasibility of establishing plea bargaining system. There is already a practical basis for establishing plea bargaining system in China. The first case closed with the application of Plea Bargaining in China has provided the foundation of the practice for localization of plea bargaining system in our country. The first successful application of Plea Bargaining has won a good social effect, showing the possibility of using and transplanting the plea bargaining system in our country.There is already a system basis for establishing a plea bargaining system in China. The size of the prosecutor discretion is one of the key elements of the availability of plea bargaining. Meanwhile, when transplanting plea bargaining system, we must concern the following factors, like, how to define the scope of prosecutor discretion of China's procuratorial organs, the size of the scope, effectiveness and reasonable of prosecution discretion. Procuratorial organs should be able to fulfill the commitments made to the defendant, making the accused's expectation of pleaing to obtain lenient treatment by cofession achieved. Procuratorial organs must master the corresponding resources, that is, the right to demand punishment. At present China's justice system, prosecutors already have a certain right to demand punishment,and this right for demand punishment has provide for the right to provide system security for establishing Pplea Bargaining.There has been foreign experience for reference for establishing Plea-bargaining system in China. After World War II, one of the development trends of the Criminal Procedure Code in the western countries, is to gradually expand summary procedures and other quick procedures. Plea-bargaining is on longer a phenomenon unique to the United States. Civil law countries has introduced plea bargaining system in the reform of the criminal proceedings with the aim of replacing or simplifying the trial proceedings, forming their new plea bargaining with the anastomosis of national conditions and the traditional litigation model. All this successful experience provide experience and inspiration for China transplanting and localizing Plea-bargaining system.Chapter four is on the study of the conditions and procedures for establishing plea bargaining system.The principles for constructing plea bargaining system are as follows:"Reunifying punishment crime and protection of human rights"principle;"Making foreign things serve China"principle;"Combining improving efficiency of the proceedings and pursuiting a fair trial"principle.The application scope and conditions for China's plea bargaining system should be fixed with the consideration of China's actual situation. The so-called dual procedure means a summary procedure system including existing summary procedures and plea bargaining procedures. Plea-bargaining procedure, as one of the dual summary procedures, shall be applied in the following circumstances,one is for the misdemeanor cases, that is, the crime which could be sentenced to three years imprisonment, criminal detention, control, and fault criminal cases (that is, most of those cases can be trialed using the summary procedure proscribed in the Criminal Code.); the other is for the cases that although a crime may be sentenced to three years imprisonment,the crime is still difficult to prove because the evidences can not reach the evidence sufficiency standard without the defendant's confession and it is difficult for further evidence collection, or the cases which still need great efforts.Operational procedures of China's plea bargaining system should be divided into three stages. First, for the cases in accordance with the the applicable conditions of Plea Bargaining, the prosecution should first ask the victims and their clients, defendants and their counsel for comments, or the defense lawyers should submit the application for plea bargaining to the procuratorial organs after obtaining the consent of the accused, and then, the defense and the prosecution should begin to consult; Secondly, in the tribunal review stage, the review mainly includes two aspects: 1. review on entities, that is, the panel should review the following elements: the nature of the case using plea bargaining, the phase of the agreement and whether the case belongs to the scope of application of plea bargaining; 2. review on the parties expression to make clear whether they have expressed their true meaning. In this stage, the judge should trial to ask the defendant and the victim whether they agreed to apply the agreement on the basis of understanding the contents of the agreement, inform the accused litigation rights, and the legal consequences of their guilt confession. Finally, the panel finish the trial and make the judgment according to two circumstances. If the case falls to the scope of application of plea bargaining, and the plea bargaining agreement is legal without any contrary to the public interests and the interests of victims, the panel should make the judgment according to the agreement. if the panel hold that the agreement is illegal or the range of sentence reduction is too large, the panel should withdraw the plea agreement.
|
PDF Full Text Request