The Research For Defendant's Right Of Withdrawal In The Cases Of Leniency For Admit The Malefaction And Accept The Punishment

As a new judicial system,the system of leniency for admit the malefaction and accept the punishment still need to improve,including defendants' right of withdrawal in the procedure of criminal proceedings,the defendant right of withdrawal in the system of leniency for admit the malefaction and accept the punishment will induce a series of consequences,such as the criminal procedure need to change,the judicial authority need to check out the evidence material again,which run counter to the judicial value,that the system of leniency for admit the malefaction and accept the punishment want to achieve it,including the improving judicial efficiency and optimizing the allocation of judicial resources.Although it is a common view that the right of withdrawal in the system of leniency for admit the malefaction and accept the punishment is necessary for the suspect and defendant.There are some problems about the withdrawal right in the system of leniency for admit the malefaction and accept the punishment.Such as,the subject of right for withdrawal indeterminacy,the standards of review is vague,and the confession of the defendant can't be exclusion in the criminal procedure.So,it is very important to make a research about the defendant right of withdrawal in the case of leniency who admit the malefaction and accept the punishment.So,this thesis focus on the defendant right of withdrawal in the system of leniency for admit the malefaction and accept the punishment from five parts,such as the conception of the right of withdrawal,the theoretical principle of the right of withdrawal,the introduction about the objection procedure in the plea bargaining of internal and foreign country,the last part rebuild the right of withdrawal in the case of leniency who admit the malefaction and accept the punishment.The first part mainly introduces the right of withdrawal in the law and the nature about the right of withdrawal.Firstly,the code of criminal procedure which was revised stipulates the right of withdrawal in the system of leniency for admit the malefaction and accept the punishment from two aspects and three dimensions.Secondly,there are different viewpoint about the nature of the right of withdrawal:right of defense or relief.The author think it is improper who think the right of withdrawal is right of relief,it should belongs right of defense.The second part pays close attention to the theory foundation about the right of withdrawal.Firstly,judicial justice and assurance of human rights are the principalvalue in the system that admit the malefaction and accept the punishment,which is more important than judicial efficiency.Secondly,as a kind of criminal theory contract,parties of a contract should be equal each other and have right to decide the contents of contract;lastly,as a kind of right,the right of the defendant withdrawal are the part of voluntariness in the case who admit the malefaction and accept the punishment.The third part discuss objection procedure in the plea bargaining.As a whole,the right of withdraw is exclusive to the accused,the office of the public prosecutor should be obey the contract.The fourth part pays attention to issues in the individual cases.There are some problems about the withdrawal right in the system of leniency for admit the malefaction and accept the punishment.Such as,the subject of right for withdrawal indeterminacy;the standards of review is vague;the confession of the defendant can't be exclusion in the criminal procedure and the defendant can't get effectively assisted from the lawyer.So we should make a comprehensive analysis on the basis of existing system.We should improve the right of withdrawal from four aspects: the subject of the right for withdrawal,the limitation in the right of withdrawal,the transformation for proceeding and the evidence issue after the defendant who withdraw his assertion.According to the case for crown and experience of lawmaking in other countries(regions)to solve the problem in the case who admit the malefaction and accept the punishment.The fifth part makes a comprehensive analysis on the basis of existing system.Firstly,it is essential to ensure the subject of withdraw right,the right of withdraw is exclusive to the accused,and the office of the public prosecutor should be obey the contract.What's more,if suspects enforce the right of withdraw the system of leniency for admit the malefaction and accept the punishment isn't effective,the proceeding should be change,and the evidence issues should be re-collection;lastly,we should assure that the defendant will not get the negative effect if he withdraw from the system of leniency for admit the malefaction and accept the punishment and protect the defendant that he will get effectively assisted from lawyer.