Research On The Designated Sentencing Recommendations For Leniency Cases Based On Pleading Guilty And Accepting Punishment

The 2018 Amendment to Criminal Procedure Law formally established the leniency system of pleading guilty and accepting punishment.With the formal establishment of this system,the sentencing proposal has been given a new meaning.It has a completely new value.The key to the accurate application of this system is that the prosecutorial organ makes reasonable,fair,and just sentencing recommendations.Sentencing recommendations are sentencing propositions made to the court by the people's procuratorates exercising the power of sentencing recommendations according to law.China's sentencing proposal has experienced a development process from scratch at different stages of starting,exploring,deepening and shaping,and its own nature has changed from weak to strong.In the cases that suspect pleads guilty and accepts punishment,the sentencing proposal has new characteristics,namely legal rigidity and consensus.In judicial practice,the prosecutor proposes two types of sentencing suggestions:precision and amplitude.Both modes have certain advantages.Suggestions for further advancing precise sentencing recommendations have received a lot of support from the theoretical and judicial circles,but the implementation process has encountered resistance.From the perspective of the relationship between prosecutorial power and judicial power,the micro-level reason lies in the generality of the legal provisions.The judge"should generally" adopt the sentencing recommendations made by the people's procuratorates.Whether this provision has a rigid binding?Prosecutors and judges have different interpretations of this expression in individual cases,which lead to the dilemma that the precise sentencing recommendations are not adopted.From a macro perspective,the people's procuratorates dominate the application of the leniency system of pleading guilty and accepting punishment.The prosecutorial power has been further expanded with this system continues to deepen,which compresses the space of traditional judicial power.Therefore,there is a friction between the prosecutorial power and judicial power,and the two have not yet run into a new state of balance.In a nutshell,the precise sentencing recommendations made by the people's procuratorates in individual cases were not adopted by the judiciary,which is a microcosm of the contradiction between the prosecutorial power and judicial power in the judicial practice.If the precise sentencing recommendations put forward by the prosecutor want to play an effective role,the key is that the sentencing recommendations can be approved and adopted by the judicial authorities.Therefore,the relationship between the current prosecutorial power and the judicial power should be reasonably coordinated.We should optimize this system around the proposed model,nature,and formation process of sentencing recommendations,so as to improve judges'adoption of precise sentencing recommendations.For example,establish the "precision-based,range-assisted" sentencing recommendation model to maintain the unity of principle and flexibility of sentencing recommendations in cases of pleading guilty and accepting punishment.The prosecutor can choose to propose precise or wide-ranging sentencing recommendations in the case according to whether the case is a sole or collegial trial.At the same time,further explore and improve the "two mechanisms"formed during the trial of the leniency system of pleading guilty and accepting punishment,that is,the stepped leniency punishment mechanism and the sentencing consultation mechanism.In the former mechanism,the prosecutor gives the prosecuted person a stepped sentencing preference at different stages such as filing,prosecution,and trial to encourage the prosecuted person to plead guilty as soon as possible.With this mechanism,the rationality of the prosecution's sentencing recommendations has been improved.In the latter mechanism,the prosecutor negotiates with the defendant and his defender or duty lawyer about the punishment.They agree on a punishment expectation acceptable to both the prosecution and the defense and sign a pleading guilty commitment,and the prosecutor made a sentencing recommendation to the court based on this commitment.The sentencing recommendations is more consensual in this mechanism.When designated sentencing recommendations are more reasonable and consensual,the possibility that courts adopting them will be increased.From the perspective of the relationship between the prosecutorial power and the judicial power,the expansion of the prosecutorial power is a practice trend during the implementation of the leniency system of pleading guilty and accepting punishment.But this expansion should follow two premises.First,this expansion should be controlled within a reasonable range,and cannot infringe the jurisdiction to finally decide the outcome of the case.Second,the expansion of prosecutorial power should be embedded in the overall process of criminal litigation reform centered on trial.Only by strengthening the top-level design under these two premises and realizing the benign interaction between the prosecution and the court can we remove the system barriers for the implementation of precise sentencing recommendations.