On The Theory And Practice Of Victim Participation In Sentencing In China

In the traditional criminal procedure,conviction and sentencing are combined together.In the process of trial,the question of conviction is the focus of cross-examination and debate,the right of sentencing is monopolized by the judge,in order to restrict the judge's discretion,to promote the justice of criminal trial.The criminal judicial reform of our country has put forward a new prospect to the independent sentencing procedure and a new requirement to the judge's sentencing.The reform of sentencing norms is in full swing.The promotion of independent sentencing procedures provides an opportunity for the victims to participate in the sentencing proceedings.In the context of the criminal justice system,which places too much emphasis on the protection of the rights of the accused,The author chose to return to the opposite of the defendant,that is,to stand by the The author tries to analyze the theory and practice of victim's participation in sentencing from the angle of criminal plea system.This paper is divided into four parts.In the first part,the related concepts of victim participation in sentencing are analyzed,and the objects studied in this paper are clarified;secondly,the theoretical basis of victim participation in sentencing is demonstrated,and the necessity of victim participation in sentencing is expounded.Finally,the role,significance and value of victim participation in sentencing are analyzed to lay a value foundation for victim participation in sentencing.The second part mainly through the comparative research method,carries on the analysis to the domestic and foreign victim participation sentencing legislation situation and the practice situation.In the domestic legislation,The victim of our country obtained the litigant status from the Criminal procedure Law of 1996,and the right of sentencing opinion in 2010.The right to criminal reconciliation with the accused in the 2012 Code of Criminal procedure,and a mediation agreement with the accused in the Criminal procedure procedure approach of2014;published in the context of the participation of the victim,to the extent of participation,Procedures and legal aid for participation And the right remedy is not perfect.In the extraterritorial research,this paper mainly adopts the methods of Britain,the United States,Germany and Japan to study the practice and legislation of foreign victims involved in sentencing.The third part selects the current guilty plea system to the defendant sentencing lighterangle,the victim's sentencing participation includes the present situation,Through the analysis of the case of Li Changkui,contrasting with the cases of Li Fei,Wang Zhicai,Yao Jiaxin,and Lin Haosen,the author analyzes the situation of the victim's participation in alienation,by analyzing the protection of the victim's rights and interests and the influence of the victim's participation in the reaction and criminal justice.And the "loss of money commutation" controversy.In the last part,according to the current situation of victim participation in sentencing in our country,some suggestions are put forward.Among them,being informed is the premise,putting forward opinions or suggestions is the core,and participating in the debate is the guarantee.The right to participation is a right and freedom.Some victims are unable to appear in court as a result of the death or hospitalization of the victim,or the victim is a minor or a group of persons in need of special protection,The victim may be accompanied or represented by the guardian or close relatives of the victim in the sentencing process,or,if the victim deems it necessary,may entrust an agent ad litem to participate.But not all victims of the case may participate in the sentencing procedure,It is necessary to start with the legal interests infringed by the crime,and to deal with the violation of the law.It is a crime of individual legal interest that the victim has the right to put forward opinions or suggestions on sentencing.Although the conviction procedure and sentencing procedure are relatively independent in our country,they will gradually become independent.Therefore,the procedural structure of the victim's participation in the sentencing procedure is a two-triangle litigation structure.In the procedure arrangement,the time,content,form and method of the victim's opinion on sentencing should be clearly defined.Finally,in the protection of the system,We should start with the assistance to the victim and the relief to the right.