Study On Some Issues Of The Sentence Suggestion System

The sentencing suggestion system is one of the major achievements accomplished in the advancement of the reform of public prosecution by the prosecution organizations. The enforcement of the power of sentencing suggestion bears great significance in the perfection of the functions and capability of the prosecution organizations in fulfilling their public prosecution duties; and it is also important in policing the discretionary powers of the judges over sentencing, in enhancing the pleading scope of the accused, as well as in ensuring the fairness of sentencing results. In the era with the steady advancement of reforms concerning sentencing procedures, the establishment of the sentencing suggestion system has encountered an unprecedentedly presented opportunity, highlighting the urgency in promoting the sentencing suggestion system. Nevertheless, the establishment of a system calls for the cooperation and coordination throughout the criminal proceedings. Since sentencing suggestion system is a newly developed system in the criminal proceedings in our country, there are various issues and problems required to be adjusted and overcome, which can only be discovered and corrected during the judicial practices, and hence finally got resolved. In the purpose of ensuring the function of sentencing suggestion system in securing the fairness of sentencing, the author adopted the approaches of case study and comparative study in conducting a comprehensive and systematic research on the three matters existing in the enforcement of the sentencing suggestion system.Part I involves the discussion about the time when the sentencing suggestion should be proposed. There are great controversies in the theoretical field in terms of the timing of the suggestion, and the concrete practices in the judicial proceedings pertaining to this matter are also without solid consistency. However, the most common approach in the current practices is the so called"sentencing suggestion proposed together with the case", which is deemed by the author as essentially an equivalent and particularized counterpart of"the theory contending the proposal to be made before the proceedings". This approach creates various problems and detriments to the rights of the accused, which is in violation of the value of justice. In consideration of the problems aforementioned, this article proceeds with the basic conception of the People's Procuratorate Guidance on Sentencing Suggestion to contend that with the premise of distinguishing the different natures of various cases and achieving the classification of different types of cases, the proper timing of the proposal of the sentencing suggestions may be achieved.Part II studies the legal effect of the sentencing suggestions. It is essentially a question concerning whether the courts are bound by the sentencing suggestions. Sentencing suggesting, as a kind of legal acts, is sure to have some relative legal effect; otherwise its existence in the general criminal proceeding activities will be without its point of existence. Contrary to the pessimistic views of theoretical scholars which argue that sentencing suggestions have no actual binding authority over courts, sentencing suggestions are admitted by the courts with a high frequency. The reason lies in the fact that the theories of the"procedural proposition"and"legal supervision"have interpreted the legal effect of the sentencing suggestions with some misunderstandings to some extent. There are two most extreme views: one contends that the effect of sentencing suggestions bears the effect of legal supervision; the other argues that the effect of sentencing suggestions bears no binding effect at all. The article proposes that a correct attitude should be taken towards the effect of sentencing suggestions, which requires the affirmation of the"soft power"of the sentencing suggestion procedures in purpose of realizing the purported value of sentencing suggestions.Part III illustrates the scope of the sentencing suggestions. The core purpose of sentencing suggestion system lies in the issue of how to propose objective and justified sentencing suggestions so as to ensure the appropriate proportion between the severity of the crimes and the justice of the penalties. The current theoretical researches and legal rules are not consistent in terms of the scope of sentencing suggestions. There are two types of typical practices, the"Beilun Model"and the"Zhenjiang Model", respectively, either of which bears enormous problems. They may contend the invalidation of the effect of sentencing suggestions, extremely low standards for making sentencing suggestions, inflexible scope for the relatively accurate sentencing suggestions, and the nonexistence of sentencing suggestions for supplementary penalties. This article points out that a correct attitude should be taken towards the matter concerning the scope of the sentencing suggestions: the sentencing suggestions should be made in consideration of the specific circumstances about the timing of the proposal of the sentencing suggestions, accomplishing the integration between the stability and flexibility in terms of the selection of the penalties, so as to fully exploit the confining functions of sentencing suggestion system and achieve the objective justice and economic effectiveness.