Research On The Issue Of The Negotiated Defense

For the negotiated justice,domestic scholars generally study from the design level of the national judicial system,such as plea bargaining system,plea bargaining procedure,and so on.And they rarely explore from the dimension of the defense.The Criminal Procedure Law,which was amended in 2012,establishes(consummates)the criminal summary procedure,criminal reconciliation procedure,conditional non-prosecution system,which is based on plea of guilty.In the context of system has been set up in the background,a new defense strategy-negotiated defense also came into being.Most of the suspects and defendants are confined to the lack of legal knowledge and defense skills,and it is difficult to maintain their legitimate rights and interests in the case of plea of guilty.At this time,if the prosecuted person with the help of the defense lawyer,through dialogue,communication and negotiation with the judiciary,and taking the suspects “guilty” as a game of chips,in the compromise to achieve “overlapping judicial consensus”,in order to achieve the parties to the “win-win”,but also insisted on the guilty of the bottom line of justice.The procedural propulsion function of the plea guilt facilitated by the negotiated defense,not only can alleviates the contradiction between the shortage of judicial resources and the litigation explosion,but also solve the antinomies of justice and efficiency among the prosecuted plea cases.This paper is made up of introduction,body and conclusion.Furthermore,the body contains five parts,more than 30000 words.The first part is an overview of the negotiated defense,which mainly discusses the connotation and extension of the negotiated defense,the difference between the negotiated defense and the screwing defense,the difference between the negotiated defense and the colluded defense,and the theoretical basis of the negotiated defense.The negotiated defense refers to the case where the accused pleaded guilty,after the defendant agreed,the defense lawyer and the judiciary dialogue and communication,within the scope permitted by law,whether the accused need to take coercive measures,whether to prosecute as well as in the case of conviction and sentencing,the defense lawyer and the injured party to apologize for compensation,compensation for the loss of consultation and whether consent of the judiciary on the prosecuted leniency of a litigation activities.Defense lawyers who take screwing defense strategy will lead to conflict between the prosecution and defense,tension between the judge and defense,which will further damage the already weak professional community.The colluded defense will corrupt the rule of law,remove the soul and spirit of the rule of law,shake the foundation of the rule of law,through the bottom line of social justice.Despite the existence of conflict and coordination in negotiated defense,defense lawyers can also agree with the judiciary overlapping consensus based on the common purpose of resolving disputes and maintaining mutual legal order.And the philosophy of pragmatism,the philosophy of deliberative theory of Habermas,and the traditional Confucian philosophy of harmony provide a theoretical basis for the defense.The second part deals with the negotiated defense in a comparative investigation way.Through the investigation of the plea bargaining system represented by the United States and the plea bargaining system represented by Germany,we can find the lawyer's role and responsibility in this negotiated justice,as well as the law regulates the lawyer who takes such a negotiated defense strategy.Hope that our country can learn from.The third part discusses the necessity and feasibility of the establishment of the negotiated defense in China.The necessity analysis is explained from the positive significance of the negotiated defense,that is,the negotiated defense can take fairness and efficiency into account,realizing judicial justice,easing the tension between the prosecution and defense relationship as well as judge and defense relationship,reducing the torture and protecting human rights.Feasibility analysis is discussed from the dimensions of criminal policy and system.Criminal policy and criminal system provide a space for the negotiated defense.The fourth part discusses the operation mechanism of our country's negotiated defense.This part mainly studies the meaning of “confession”,the scope of negotiated defense,the way and content of negotiated defense.The way and content of the negotiated defense are discussed mainly from the litigation process of the case.That is,in the investigation stage defense counsel persuades investigators to withdraw the case and do not take coercive measures.In the review of the arrest,review of prosecution stage,the defense counsel persuades prosecutors not to make arrest or initiate a public prosecution decision.At the trial stage,the defense counsel negotiates with the judge about the defendant's conviction and sentencing.At last,this part discusses the negotiation between the defense lawyer and victim.The fifth part mainly discusses the guarantee mechanism of negotiated defense in our country.In order to ensure the smooth development of the negotiated defense,the author makes the following suggestions: establishing a confirmation mechanism for the outcome of the negotiation;establishing the withdrawal mechanism of the “plea agreement”;to promote the trial as the center of the litigation system reform,enhancing the substantive trial;improving the rules of illegal evidence;strengthening the disciplinary mechanism for the misconduct of lawyers.