Study On The Right Of Recall Of The Accused In Lenient Punishment

Since 2014,China has formally explored the establishment of a lenient system for pleading guilty and punishment.After more than two years of pilot projects,it was formally incorporated into the Criminal Procedure Law when the law was revised in 2018,which was clearly stipulated.From the legislative content,the focus of the new Criminal Procedure Law is to guarantee the voluntary plea of guilt and punishment of the accused.Whether to grant the right of withdrawal to the accused for the pleading guilty and punishment cases,the new Criminal Procedure Law does not clearly stipulate,but there is a rudiment of the right of withdrawal in the lenient system for pleading guilty and punishment.In the pilot work,there are some problems that can not be ignored,especially the repentance of court proceedings,which is seriously related to the litigation interests of both the prosecution and the defense.At the same time,the current research on the right of withdrawal of the accused is scattered and lack of systematicness.It is also urgent to systematically sort out and summarize,so as to better construct the right of withdrawal of the accused for pleading guilty and punishment.To construct the right of withdrawal of the accused for pleading guilty and punishment cases,firstly,we should elaborate the meaning of leniency system for pleading guilty and punishment,clarify the meaning and nature of the right of withdrawal of the accused for pleading guilty and punishment,define the right of withdrawal as relief right and procedural right,and make a comparative analysis with other rights or powers,so as to provide a theoretical basis for the construction of the right of withdrawal.Secondly,we should analyses the legislative and judicial status of the withdrawal of the accused in the pleading guilt and punishment cases.At present,there is no unified and authoritative legal provisions to stipulate the right of withdrawal of the accused,and the local legislation is also disorderly,which makes the withdrawal impossible and excessive in practice.All of these need to be regulated at the legislative level urgently.Lack of legislation and confusion in practice make it necessary to construct the right of withdrawal.Constructing the right of withdrawal of the accused can guarantee the lawful rights and interests of the accused,which is the inevitable requirement of realizing the unity of fairness and efficiency.The reference of foreign related systems and the analysis of existing systems provide feasibility for the construction of the withdrawal right.Successful pilot experiences such as duty lawyer system and effective defense system provide conditions for the construction of the withdrawal right.The provisions of the Criminal Procedure Law of China on the adjustment of sentencing suggestions by procuratorial organs also open up new ideas for the construction of the withdrawal right.By drawing lessons from foreign experience and analyzing the relevant supporting measures at the present stage,we can start the construction of the right of withdrawal of the accused for pleading guilty and pulishment.The subject of the exercise of the right of withdrawal should be clarified.In addition to the accused himself,the subject of the exercise of the right of withdrawal includes his defender and close relatives.The conditions for the exercise of the right of withdrawal are clearly defined and the restrictions are constantly strengthened with the conducting of the proceedings.The legal consequences of exercising the right of withdrawal should be clarified,and the procedure should be changed to ordinary procedure for trial;in sentencing,the preferential sentencing in plea bargaining is no longer applicable,and the case should be tried on the basis of factual evidence as a brand-new case;in evidence,it should be treated differently.Confessions made in the investigation stage can be identified with other evidence;while in the investigation and prosecution,the court and the procuratorate joined in the consultation and the objectivity of the guilty plea is questioned.Such confessions should be excluded from use.Finally,we should improve the supporting system related to the withdrawal right,including the right informing system,the avoidance system,the lawyer assistance system and so on.