Sentencing Of The Proposed System Are Constructed

Criminal trial procedure of our country is operating under a unitary system for a long time. Conviction and sentencing are carrying out in a same court trial with no special section for investigation and debate. The emphasis on substantive justice for the accuracy of conviction causes the neglect of sentencing justice in judicial practice. Same Accusation with different penalty can often be seen in justice. What worth thinking deeply is, under this phenomenon, except for the diversity caused by difference of crime circumstances and methods in a case, deviation of sentencing discretion caused by non-standard exertion of judicial discretion and imperfect penal procedure mechanism are important factors in sentencing.From the 1990s, basing on investigation and reference of overseas experience, judicature circles began to explore the reform of sentencing procedure. Procuratorial organ also actively launched pilot work of sentencing suggestion. After ten remaining years of development, China has decided to reform the criminal judicial procedure by establishing relative and independent sentencing procedure to regular judicial discretion. Since October, 2010,"Suggestion of Certain Problems about Regulating Sentencing Procedure"("Sentencing Procedure Suggestion"for short)issued by Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, National Safety Bureau and Ministry of Justice as well as"Sentencing Guidance Suggestion of the People's Court"("Sentencing Guidance Suggestion"for short) issued by Supreme People's Court were cried out national wide.The Procuratorial organ's right to propose sentencing suggestion to the court in the public prosecution case and the sentencing suggestion system formed by certain question basing on regularity and improvement of power exertion are keys for sentencing procedure reform. Basing on the concept of power separation and restriction, the right of effectively exercise of sentencing suggestion by Procurators is one of the methods to regular judicial discretion which has changed the dictatorship of sentencing by judges. Divided exertion of sentencing suggestion and prosecuting right can enhance the independence of sentencing suggestion and change the history that sentencing circumstances were abridged in the indictment, so as to make sentencing justness possible. However, sentencing suggestion is proposed basing on reference of our overseas experience. The basic theory like the nature of sentencing suggestion right,proper grounds and value significance as well as the practical basis of constructing sentencing suggestion system, concrete programming and the establishment of supporting measures are waiting for further study and discussion.Basing on analysis and study of the above achievement combining with the practice of the Procuratorate I worked which promoted the sentencing suggestion pilot as well as the trial implementation result of"Sentencing Procedure Suggestion"and"Sentencing Guidance Suggestion", the author of this article puts forward some idea about sentencing suggestion from the Procuratorate. This thesis can be divided into three parts from the structure: the first part introduces the basis theory of sentencing suggestion from the Procuratorate, including concept definition of sentencing suggestion, the nature of the sentencing suggestion right as well as justification and value of exercising sentencing suggestion right. The author considers that sentencing suggestion is"a kind of lawsuit activity that the Procuratorate asks the People's Court to give the defendant a certain penalty and proposes specific suggestion of the kind of punishment, accessory penalties, sentence and executive mode". Sentencing suggestion is, in essence, the extension of prosecution right and a judicial claim right with the nature of public power. The second part introduces the system and operation of overseas Procuratorate. In the hope of offering reference for our construction of sentencing suggestion system, the author analysis and compares sentencing suggestion system of England, America, Germany, Russian and Japan's Procuratorate from all of which we gain much revelation,. The third part is the focus of this thesis, in which the author conceives the range of case that sentencing suggestion can be used in constructing the system. The author also puts forward basic technical measure regulation of the subjects, ways, time and types of the sentencing suggestion as well as how to establish and improve the supporting system of sentencing suggestion such as the involve of sentencing procedure of victim and revealing system of evidence before court hearing.This thesis is based on observation and thinking of Procuratorate's pilot of sentencing suggestion system as well as the experience the author gained from procurator's work. The author also put forward some ideas about sentencing suggestion system of Procuratorate. However, because of limited theory and overseas experience, maybe the author can not make an academic analysis of sentencing suggestion system which is waiting to be further improved in author's future work and study.