On The Voluntariness And Procedural Safeguard Mechanism Of The Defendant Acknowledging Its Guilt And Punishment

Since September,2016 On the Authorization of the Supreme People's Court,the Supreme People's Procuratorate of Launching Pilot Work of Lenient Punishment on Defendant Acknowledging Its Guilt and Punishment in Criminal Case authorized 18 cities such as Beijing to carry out pilot work,plea agreement procedure reform in China started.In November the same year,on the basis of summarizing the practical experience of criminal justice and the pilot experience of criminal cases fast trail,the Supreme People's Court,the Supreme People's Procuratorate,Ministry of Public Security,Ministry of State Security and Ministry of Justice introduced Rules on Some Places Launching Pilot Work of Lenient Punishment on Defendant Acknowledging Its Guilt and Punishment in Criminal Case,including 7 articles highlighting that the defendant should be voluntary to acknowledge guilt and punishment,which indicates a gradual rise in human rights consciousness in China and further develops of the principle of due process.Voluntariness of the defendant acknowledging its guilt and punishment is the prerequisite question of this lenient punishment system.A systematic study on this,on one hand,can provide the judicial organ systematic with understanding on defendant voluntarily acknowledging guilt and punishment,unify legal application,and safeguard the principal position of the defendant.On the other hand,it can provide systematic and procedural guarantee for the procedural rights of defendant's voluntary choice,so as to ensure true and voluntary confession.In addition,it can provide the necessary foundation for the legislation of this system and thorough implementation nationwide.In the cases of lenient punishment of defendant acknowledging its guilt and punishment,high potential of judicial organs may use illegal approaches like torture,threat,enticement to force the defendant to acknowledge guilt and punishment,which require,starting from its connotation and denotation,to define what is voluntary and passive acknowledgement of guilt and punishment,and what is voluntariness of acknowledging punishment.Then distinguishing its relationship with surrender and confession to therefore accurately define the concept of defendant voluntarily acknowledging guilt and punishment.Safeguarding the system of judicial organ's review of the voluntariness need,not only from whether the criminal suspect voluntarily states its criminal facts and its penitence attitude,but also from whether the investigation organ and the prosecution have forced confession behavior,whether judicial organs fulfill the informing obligation and lawyers participation,defendant's acknowledgement and performance,and the fact these four aspects,to build objective standard of defendant voluntarily acknowledging its guilt and punishment.Only the combination of subjectivity and objectivity criterion can determine whether the defendant acknowledge guilt voluntarily.In order to guarantee the voluntariness of the defendant's guilty acknowledge and to balance the fair value and the efficiency value,it is very important to construct the safeguard mechanism.It is in accordance with the law of our country to construct the procedural safeguard mechanism of the defendant's guilty acknowledgement in five aspects:informing,reviewing,objecting,turning and relieving.Informing procedure aims to guarantee defendant's right of being informed,and should be constructed in three aspects:the informing obligation of the judicial organ,the substantive participation of lawyer and the construction of the evidence opening system.Reviewing procedure is the core of the defendant's voluntary procedural safeguard mechanism,which should clarify its subject,mode,content and result.Objecting procedure is the process of expressing doubt about the defendant's guilty acknowledge,regulating the exercise of the subject,the stage and the condition of the exercise,and exercising the consequences,so as to examine the voluntariness of the defendant from the side.The turning procedure is to give the defendant the right of rescission,and to implement it from the three aspects:its exercise stage,condition and effect.The relieving procedure is to establish and perfect the defendant's right of appeal and strictly follow the rule of excluding illegal evidence,insist on the system of judicial responsibility and strengthen supervision.