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Analysis Of Improvement Of The Sentencing Defense System Of China

Posted on:2014-03-07Degree:MasterType:Thesis
Country:ChinaCandidate:X Y YangFull Text:PDF
GTID:2256330401461757Subject:Law
Abstract/Summary:PDF Full Text Request
The key issue in establishing independent sentencing procedure is to establish and improve the sentencing defense system. Relatively independent sentencing procedure has been paid much attention during the process of the judicial reform in our country in recent years. The "sentencing suggestion system" emphasizing legal supervision of the sentencing procedure by The people’s procuratorate is regarded as a major achievement in the reform of the sentencing procedure for its high adoption rate in the judicial practice.In addition, scholars have been paying more attention to the issues such as taking the victims as participants in sentencing procedures and building special rules of evidence for sentencing procedures,etc. However, the confrontational nature of the procedure shows that the sentencing process will not be complete or independent without participation of the defendants. So how to ensure an effective participation of the defendants in the sentencing process has become an unavoidable issue in the reform of the sentencing process. The author first summarized the specific power of sentencing defense as the following:The first is the right of the access to sentencing evidence, namely giving defense lawyer enforceable power to survey and collect evidence, so as to make it possible for them to investigate and collect evidence of sentencing plot such as the defendant’s consistent performance before the crime, his motive for committing the crime, his attitude after the crime and the conditions of his returning the ill-gotten gains and compensation, etc. The second is the right of the application of the sentencing evidence, namely using the advantageous collected sentencing information to challenge the sentencing evidence provided by the prosecutor,and putting forward lighting sentencing plot that is in favor of the defendant. The third is the right of publishing the sentencing opinions,which is, on the basis of comprehensive analysis of the legal sentencing circumstances and discretionary sentencing circumstances for sentencing decision might affect, grasp the case facts and publish the sentencing opinions. In the long-term judicial practice, people attached great importance to the innocent-defense and ignore the sentencing-defense. The most obvious performance is there is no independent sentencing procedure in the trial, and sentencing and conviction issue be resolved together, which makes the right of sentencing defendant can’t play in independent sentencing procedure, thus seriously affect the entity rights and litigation rights of the defendants. Even if the right of publish the sentencing opinions has been given to the defendants through the relevant laws and judicial interpretations, it is also difficult to achieve in judicial practice. In October2010, the nationwide implementation of the "Opinions on the issue of sentencing procedures (trial)" article7and article9, respectively provision how to deal with the sentencing procedure and the conviction procedure in the summary procedure trial, the ordinary procedure trial and the defendant pleaded not guilty case. In general, the relatively independent sentencing procedure don’t determine the crime and non crime as the the premise of punishment, but make the conviction and sentencing regularly cross. This model still can’t avoid contradiction in the defendant pleaded not guilty case "on the one hand, make not guilty defense, on the other hand make sentencing defense". Aiming at this problem, the author considers that should put the conviction and sentencing on the procedures for separation,only make sentencing procedure independent from the conviction procedure, that can create institutional premise for the development of sentencing defense. Sentencing defense to eventually convinced the judge given a lighter or mitigated punishment or be exempted from the punishment as the goal.first,it need collect sentencing information roundly and accurately, second, need to contrast the sentencing information with the sentencing plot which established by law, screening out the sentencing plot which in favor of the defendant, at the same time,counter the disadvantageous sentencing suggestion provided by the prosecutor, finally comprehensively consider all the sentencing circumstances of the case and put forward how to apply to the type and scope of punishments to the defendant in court.
Keywords/Search Tags:Sentencing Defense, Independent Sentencing Procedure, Sentencing PlotDefense Opinions of Sentencing
PDF Full Text Request
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