On The Participation Rights Of Victims In Sentencing Activities In The Cases Of Public Prosecution

In recent years, the value and function of victim’s participation in sentencing has beenwidely recognized theoretically and practically with the in-depth development and reform ofChina’s sentencing procedure."The Outline of the Third Five-Year Reform of the People’sCourt "requires putting the sentencing procedure clearly into the procedure of court trial."TheOpinion (for Trail Implementation) of People’s Court Sentencing Procedure Instruction" alsoemphasizes ensuring the normalization of sentencing activities in court investigation andcourt debate phases，paying more attention to finding out the facts and the evidences insentencing, and listening to the opinions about sentencing from two sides，including those ofthe victims. However, it is a big hinder to construct a standard sentencing procedure to protectthe victim’ rights for the related system and concrete operation procedure is still inexperimental stage without established unity, and comparing with other litigation subjects,the victim’s participating right has not received enough attention. Therefore, at present it hasbecome urgent to profoundly understand the tendency and reason of the righttheoretically andensure the practice of the rights constructively.Besides the introduction and conclusion, the text of this paper is divided into four parts,which includes about thirty thousand words.The first part discusses the concepts and the specific powers of the victim to participatein sentencing. The victim’s right to participate in sentencing, namely the right to advice thepeople’s procuratorate and people’s court when legitimate rights and interests suffered directlyfrom infringement. Natural person, juridical person and other organizations stated objectivelyhis damages on every aspects such as personal, property and spiritual in the case of publicprosecution about sentencing activities and according to criminal facts, criminal plots,properties,regret attitude,compensation and so on, and put forward the advice about whichpunishment the victim should be inflicted, including four specific powers——the right toknow sentencing, the right to obtain evidence, the right to advise and the right to debate onsentencing. And the right to know sentencing is the precondition of the realization of thevictim’s right to participate in sentencing, while the right to obtain evidence is the foundation,the right to advice is the carrier, the right to debate is the core.The second part analyses the rightful causes of the victim’s right to participate in sentencing, which can be elaborated from multiple perspectives. From the standpoint of thevictim, the most direct reason of the victim’s participation in sentencing is to express thedesire of the penalty on the defendant, and smooth out the psychological trauma caused by thecrime. From the standpoint of procedure, victim’s participation in sentencing is an inevitablerequirement of procedure participation principle and the embodiment of respecting thevictim’s litigation subject status, at the same time it can improve the sentencing procedure inChina, make sentencing procedure opening-up and transparent, and overcome the proceduraldrawbacks of " prior condemning to sentencing" in the past. From the standpoint of judicialeffect, the victim participates in sentencing activity will help attack crime and enhance theauthority of judge. The victim’s sentencing recommendations and sentencing debate will, onthe one hand, help to find out the facts and the evidence to prove the accused guilty; on theother hand, make the defendant recognize the harm of his act, and accept punishmenttransformation from thought to action, and avoid to commit crime again. It not only attacksthe crimes from the form, but also forcefully encourages the prisoners to transformthemselves.At the same time, instead of blocking systematically, leading and regulating theretribution conceptions of the victims and the whole public would do good to help the victim,the defendant and the social public to understand the reason as well as the basis for thepunishment imposed on the defendant, in this way, the defendant would better accept theresult of the sentencing and meaningless appeal, complaint and suspicion would be largelyreduced.The third part analyses the tendency of this system——the victim’s right to participatein sentencing. Common law countries ensure the victim’s participation in sentencing mainlyby the way of submitting the paper of "the victim impact statements".The mainland legalsystem also pay more attention to it as time went on, but the general situation is not as well asCommon law countries. Since the reform of sentencing standardization in2009, China hasestablished a relatively independent sentencing procedure in many places of the pilots, and itis actively establishing the sentencing recommendations system and the crime measurementpleading procedures with the participation of the victims. The measures above have gainedgood practical results, it reduced the rate of appeals and petitions effectively, and enhancedthe judicial recognition. Thus, the victim’s right to participate in sentencing is graduallygetting respect and practice. The last part of the paper analyses the systematic construction of the victim’s right toparticipate in sentencing. Generally speaking, we should clearly recognize the subject statusof the victim to participate in sentencing by law, such as the time，the methods, and thepunishment scope to put forward sentencing recommendations. From the concrete trial stages,the victim and his agents should be informed of that the right he has in the phase ofprosecution and investigation, and he should be allowed to collect sentencing evidence andput forward sentencing recommendations. In the trial stage, the court should timely reviewsentencing recommendations, notify the victim to participate in sentencing debates on time,allow them to make final statements, and make some specific instructions to elaborate thedifference between the referee documents and sentencing recommendations. In addition, toensure that the victim could timely and effectively perform the rights to participate insentencing, it is necessary to improve the victim lawsuit agent system, legal aid system andother related supporting systems.