The Multi-Participation Of Sentencing Procedures

With the improvement of the legal system and the deepening of the rule of law consciousness, criminal due procedure has been widely concerned, and it has increasingly become the focus of criminal law reform. The main task of criminal procedure law is to control the criminal jurisdiction by constructing criminal due procedure, to ensure judicial justice, and to guarantee the realization of litigation rights and substantive rights for each party. In recent years, the result of sentencing has been given more and more attention. At the same time, with the revision of criminal procedure law, the conviction procedure has been further improved, while problems in the sentencing procedure are highlighted. And in the judicial practice, one thing is that defendants in the vast majority of criminal cases give a guilty confession, another is that the prosecutors and the defendants have no obvious disputes about the conviction, as well as the rate of guilty verdict is extremely high. It demonstrates a fact that the core of criminal justice is the issue of sentencing, rather than conviction. It is a reflection of criminal justice to sentence legally and reasonably, meanwhile it will be the viable path to achieve this goal through the sentencing due procedure and to ensure the partic ipation of each party.In addition to introduction and epilogue, this article is divided into five parts:The first part, make a distinction between sentencing procedure and sentencing, interpret the essence of the sentencing procedure is the multi-participation of each party, and indicate the meaning of the sentencing procedure from three aspects.The second part, summarize the legislation and judicial situation of sentencing procedure through analysing the criminal procedure law and other judicial interpretation, and taking Xiaoshan people’s court’s sentencing standardization reform as the example.The third part, comb the Habermas’s theory of communicative action and the feasibility, the necessity, the necessary extension while this theory applies to sentencing procedure. Emphasis on sentencing procedure should transform from the traditional one-side disposing to the modern inter-subjectivity interaction.The fourth part, view the ideal speech situation as the framework and build the mechanism of sentencing procedure multi-participation. Set up the independent sectencing proceeding, and admit the judge’s sentencing discretion, ensure other parties’rights, like the procurator’s right to recommend sentences, the defendant’s right to attorney in sentencing, the victim’s right to state in sentencing, and the understanding proceeding in sentencing. Found the rules of prove and remedy in sentencing procedure.The fifth part, analyse the opinion crisis which judicial has to face from the characteristics of public opinion, the necessity to reply, and propose the moderate open of sentencing procedure.