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Research On The Power Of Sentencing Proposal Of Procuratorial Organs

Posted on:2009-07-27Degree:MasterType:Thesis
Country:ChinaCandidate:C C WangFull Text:PDF
GTID:2166360242482746Subject:Procedural Law
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Sentencing proposal system is a new problem brought to the civil suit field, and it is also one aspect of the reform of judicial system in recent years. Where the significance of the sentencing proposal system lies, what its theoretical basis and how to exert the power sentencing proposal, have been discussed for years among scholars. On the basis of comparing and integrating the points made by previous studies, and after examining the state of exerting this power in and out of our country, this article explores the path to construct our county's sentencing proposal system.This article has five chapters:The first chapter is about the general theories concerning the sentencing proposal system. The power of sentencing proposal is a power right enjoyed by the prosecution department to give suggestions of the penalty given to the defendant, based on the defendant's crime plot and the crime's social impact. Judging from its properties, the power sentencing proposal is the power right of judicatory petition, is a procedural power right, and is a legal power right of exclusivity. These properties define the boundary of the power sentencing proposal and the judges'power of measuring penalty and the defenders'power of defending. The power of sentencing proposal has very important litigant implications. First, sentencing proposal system makes the sentencing proposal more transparent, leading to a more just litigant procedure. Secondly, sentencing proposal can provide basis for the prosecution department and put a limit on its abuse of its right of counter-appeal. Third, the power of sentencing proposal means the defender and the defendant can debate over specific questions about the measurement of penalty, which makes the defendant identify with the trial and reduces the rate of appeal. Fourth, sentencing proposal can help enhance the qualifications of the inspectors and improve the quality of the handling cases. The second chapter is the analysis of the rationality behind the power of sentencing proposal. The setup of sentencing proposal system is reasonable from the legal principle perspective. Specifically, first, the power of sentencing proposal is required by the balance of power. Sentencing proposal system can limit the judge's free measure right effectively. Although, the power of sentencing proposal is just a petition right and has no restraining power, the specialty of the claim of the power of the sentencing proposal by the inspector, as a representative of the state's public prosecution department, makes the sentencing proposal very important. And as a reference of the judge when he/she measures the penalty, it can serve the purpose of limiting the judge's power. Second, the power of sentencing proposal is required by the principle of no claim no trial. The passivity of justice determines that the spectrum of judging is limited by that of the prosecution. In the terms of the cases in public prosecution, only through the inspection department's prosecution can any crime enter the criminal judging procedure. And to prosecute any criminal, the inspection department must and enough evidence and a clear prosecution claim. Moreover, the spectrum of prosecution determines the spectrum and object of judging. Third, the power of sentencing proposal is required by the reform of judging method.Measurement of penalty, which embodies the aim of criminal law and is closely related to the defendant's interest, is the only part that has not been touched in court defense. The exertion of this power can enforce both parties'confrontation with the measurement of penalty, which can not only give the two parties more chances to defend themselves, but also is good for the prosecution department to strengthen its function.The third chapter is the analysis of the state of the power of sentencing proposal in our country. Since the power sentencing proposal is brought forward, prosecution departments in some areas go through a process from trying to give measurement suggestion for a particular case, to find the law of a class of cases, and to generalize the power into most cases. In some sense, the sentencing proposal system has achieved a lot. However, the promotion of this system has encountered many obstacles. There are many reasons for this. The author thinks that most of the reasons are related to ideas. Many people think the main duty of the prosecution department is to charge the criminals, which is achieved by sending the defendant to the court, and the power of measurement of penalty is inseparable from the power of judging. They think the final decision should be given by the judge and the evidence held by the prosecution department can only be adopted after being shown in court, and confirmed. These obstacles bring challenges to the construction of the system.The fourth chapter is about the state of foreign countries'exercising the power of sentencing proposal. The author examines the state of some countries from the UK-US genealogy of law and continent genealogy of law. Although some countries forbid the prosecution department to give measurement suggestion, in most countries'criminal law practice, the execution of the right by prosecution department is a routine. Establishing the sentencing proposal system is a development trend in criminal law. However, American and Canada under the he UK-US genealogy of law, and Germany and Japan under the continent genealogy of law, have very different law and justice traditions from our country. Therefore, it is impractical to copy those countries'practice. The construction of sentencing proposal system should be based on our country's situation.The fifth chapter is the constitutional construction of the power of the sentencing proposal system. The execution of this power should be in accord with the principles of justice, openness, balance and explicit. We argue that sentencing proposal should be a suggestion of explicit imprisonment. Just as the judge's measurement of a criminal's penalty is a point, not a tolerance, sentencing proposal should also be a specific term of imprisonment. This is a sentencing proposal in its real term. At the same time, this is in line with the principle of explicit. Because the power of sentencing proposal is a natural part of the power right of public prosecution and is related to the power of conviction appeal, it should be applied to all cases. That is to say, all the cases which require the court to convict, can ask the court to give suggestion concerning the defendant's crime measurement. As for the timing of sentencing proposal, it should be given according to different stages of different cases. For those cases applicable to the common procedure, especially significant and complicated ones, it should be given in the court defense after the examination of the evidence. But to some cases applicable to simple procedure, common simple procedure, it can be given in the indictment paper. The way of giving sentencing proposal can be different according to the different situations of simple procedure and common procedure. In simple procedure, because the case is simple, a paper of suggestion can be attached to the indictment paper and be sent to the court. In common procedure, because the case is complicated and variable, the suggestion should be given orally in court defense, and be recorded by the clerk. Besides, to insure the proper execution of this right and to embody the seriousness of the suggestion, mechanisms related to this system should be established, for example, a mechanism for explaining why a judge does not accept a suggestion system and a institution to check the prosecutors'work.The system cannot be constructed in a short time. A good system needs a long term of practical probe. This way, the newly-built system will not waste legislation resources, and can be effective when executed. The construction of the system should go further, and the trial of this practice should be furthered. Only this way can a reasonable and feasible sentencing proposal system be constructed.
Keywords/Search Tags:Procuratorial
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