The Victim And Plea Bargaining

Plea bargaining system is important in American criminal justice. It is widely used for its great efficiency. Criminal victim is the individual whose personal rights or property rights are violated by criminal offence. The result of crime processing has direct interested relation with criminal victim. However, plea bargaining simply focus on charging and sentencing toward defendant, then the agreement reached by both parties is reviewed by judge, then the victim's interest did not get enough attention. This is how the debate about plea bargaining started from the very beginning. China's judicial practice is facing two problems: case overstock and low efficiency. Plea bargaining system can surly help to relief the situation. Knowing that American plea bargaining system failed to protect the interest of victim well, we should take more serious consideration about how to position victim. To solve these problems, we need to study the current situation about how victims take part in American plea bargaining trade, then help to position victim properly when China's plea negotiation system is under construction. In this article, taking victim's view angle, investigation has been taken to both theory and practice of plea bargaining system, then, presents unique point of view about China's plea bargaining system and how to position the victim. There are 4 parts in this article, and sum up to 31,000 characters.The first part of this article is about study and reflection to the process of how victim take part in plea bargaining in America. In practice, victim is in a situation of vacancy in American plea bargaining system. Victim is not able to affect when or how the plea bargaining begins, does not enjoy the right to know the trade detail, compensation is not necessary during negotiation, and the court take less consideration to victim when exam plea bargaining agreements. The reason of victim vacancy is analyzed also. By studying the change of the relations between victim and defendant, between victim and country, we found there are two reasons: modern criminal suit guarantee more rights of victim, and public prosecution is monopolized by country. The victim vacancy in plea bargaining system leads not only to victim's second harm, but also harmful to realize punishment function and power supervision.In the second part the theoretic source for victim's participation to plea bargaining are analyzed. There are four sources: First, as crime is a behavior that seriously violates private rights, prosecutors can not represent all right plea from victim, nor can they take it as the main theoretic source to let victim participate plea bargaining. Second, to realize the function of punishment, including normal preventive function and special preventive function, victim should participate plea bargaining. Third, victim's participation in plea bargaining can help find out the truth of the crime, to make up the basic fact insufficiency in plea bargaining. Last, victim's participation can realize the maximum lawsuit justice, including substantive justice and procedure justice.The third part mainly analyzed China's plea bargaining, including its practical situation and necessity of victim's participation. Although there's no plea bargaining in China's law system, plea bargaining practice does exist in criminal justice, like the leniency policy, use of plea bargaining in trailing ordinary criminal cases, trading with accessory in joint crime cases, exemption to briber who accuses the bribee in bribery cases. All these judicial practice laid a solid ground to introduce plea bargaining system in China. At the same time, in China, victim takes a subject position in criminal lawsuit. In order to embody victim's subject position in lawsuit procedures, to guarantee victim's civil right of plea for compensation, we should pay a little bit more attention to protect victim's interest when learning plea bargaining system in foreign countries.The fourth part is mainly about establishing China's plea bargaining system on the basis of victim's participation. To take victim into the plea bargaining system, firstly the relationship between victim and prosecutors, relationship between victim and defendant should be adjusted, legislatively grant victim corresponding rights in plea bargaining procedures, therefore to provide legal back for victim to participate plea bargaining. Then, based on victim's participation in plea bargaining, designs are made in three aspects: scope of application, content of plea bargaining, and procedure of application. At last, to guarantee victim can participate plea bargaining effectively, and to guarantee the smooth progress of plea bargaining, strengthening should be made to victim lawyer aid system and victim assistance system.