Comments On Plea Bargaining System In China And Its Construction

The article introduces the plea bargaining system as a view of reform of judicialaffairs, and elaborate the meaning and source of the plea bargaining from the theory,analysis the value of it in the view of fair and efficiency, then expound the feasibilityof establish the plea bargaining in china in the law, practice and concept angle, andthen raising the point to build the plea bargaining system with Chinese characteristics,include the followings:First, introducing of the meaning of plea bargaining system. The plea bargainingis a system which source from American and the appear of it is meaning to deal thedissonance between the amount of cases and the judicial officials in the19thcentury,the main idea of it is that before the sentence of the case facts by the trial jury, a dealhas been reached by the prosecution and defence counsel, the details is that theprosecution provide the lesser accusation or educe the accuse of the crime for theaccused, corresponding, the accused admit his guilt. Now this system has beenapplied by many countries.Secondly, current situation of the application of plea bargaining in china. Thesolution of intentional damage cases in Dec.18th2002in railway transportationcourts of Mudanjiang, the policy to surrenderor in Sicuan are both reflect the pleabargaining applied in china, the first is the actual case and the second is an policyrules, besides, the scholars hold different views about the introduce of the pleabargaining which can be divide into three views, affirmation theory, negation theoryand deferment theory, and every theory elaborate the application of plea bargainingsubstantially in different viewsAgain, the feasibility of plea bargaining in china. the article combined the value,characteristics and the judicial system in forced discuss the feasibility and obstacle ofplea bargaining in china. And the feasibility of it is showed in the aspect of judicial efficiency, human right protecting and the freedom to deal a contract. Relevantly, theobstacle of it is showed in the aspect of the obey of real justice of judicial, the mainidea of the people to the judicial and the judicial system present.Last, build the plea bargaining with Chinese characteristic. The introducing ofthe plea bargaining is sure according to the judicial condition of our country and thethought of development of law, but the following is worth to be notice, the introduceis not to transplant, but a process of absorbing and assimilation, on this basis to statedetail about the apply subject, time and scope of the plea bargaining. Details asfollows: the applying time of the plea bargaining is before from the investigationand terminated in the time that the court made in force sentence; the dealing subject iscensorate, court, defendant and the defence counsel, victim. For the scope of the pleabargaining, the limitation theory should be adopted, and the scope is greater than thesummary procedure but excepting the crime with odious nature and serious damagesand that can be sentence to not less than10years fixed-term imprisonment. Otherwise,according the judicial system of our country, there must be set relevant supervisingagencies in the running of plea bargaining, include censorate, court system andneutral agency, only thus can the plea bargaining running kindly, and to prevent thephenomenon about the judicial corruption.