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The Construction Of Plea Bargaining System In China

Posted on:2018-09-28Degree:MasterType:Thesis
Country:ChinaCandidate:M L ShuFull Text:PDF
GTID:2336330512480113Subject:Law and Economics
Abstract/Summary:PDF Full Text Request
Nowadays,the contradiction between the rapid increase of criminal cases and the limited judicial resources is becoming more and more prominent,which can be found from the recent trial of “criminal speedy trial procedure” and “leniency on admission of guilty and acceptance of punishment”.The situation of improving the efficiency of criminal proceeding attract attention to the plea bargaining.Plea bargaining system originated in the United States,and gradually developed into Italy,Germany,etc.The plea bargaining systems in different countries are different in some aspects such as the subject,the content,the range,the application and so on.But they all improve the efficiency of criminal proceeding.The plea bargaining system has been controversial since its beginning.It has been suspected of damaging the criminal justice,ignoring the interests of victims and so on.And the questions of whether our country should construct the plea bargaining system,how to construct are controversial.Based on the situation,the article use game theory approach—one of the economic approach to discuss the plea bargaining,mainly using the prisoners' dilemma game and the bargaining game.First of all,the rationality of plea bargaining should be analyzed from the macroscopic and microcosmic aspect.At the macroscopic aspect,we will analyze the impact to justice.Criminal justice mainly includes “not punishing the innocent and not indulging criminals” and “the punishment match the crime”.Through simulating “both the prosecution and the defense bid”,we can conclude that the innocent will choose the trial rather than the bargaining,while the guilty will choose the bargaining.So the innocent and the guilty will be separated in the plea bargaining,which will not let the innocent be punished and let the guilty escape the punishment.Even the punishment will be reduced in some degree,the relative justice can be achieved.At the microcosmic aspect,we will analyze the game between the prosecution and the defense and the game between the defense and the victim,then demonstrate that the plea bargaining can bring the prosecution and the defendant out of the traditional prisoner's dilemma and realize the Pareto optimal,and show that the victim has excitation to agree the plea bargaining.In order to realize Pareto optimal in the plea bargaining,the game conditions such as the players,the bargaining power,the information and the incentive motivation should be satisfied.When we compare these conditions with the practice of criminal procedure in our country,we conclude that the problems will appear if we want to construct the plea bargaining in China,such as the status of the defense is too low,the lawyer's defense is lack of effectiveness,the discretion of the prosecution is limited,the evidence discovery is inadequate,and the defense's cooperation excitation is not sufficient.In order to solve these problems,the construction of the plea bargaining system should start from two aspects.On one hand,we should set up the supporting system,strengthen the lawyer's defense,consummate the evidence discovery and establish the control system of the prosecution.On the other hand,when we design the plea bargaining system,the subject should include the victim by the way of increasing the victim consent before the bargaining;The transaction content is limited to sentencing transactions,the transaction rate is 1/3;The application is determined to the cases which has basic sufficient evidence and the defense may be sentenced to imprisonment under 3 years,criminal detention,public surveillance or independently be sentenced to a fine;The specific procedure should ask the judge to review whether the defense is innocent,besides of the review whether the defense is voluntary and knowing or not.
Keywords/Search Tags:Plea bargaining, Rationality, The game between the prosecution and the defense, Prisoners' dilemma, Bargaining, Pareto optimal
PDF Full Text Request
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