The Study On The Right Of Rescission Of The Leniency System Of Guilty Plea

In order to further improve the criminal procedure and reasonably allocate judicial resources,the "Criminal Procedure Law of the People's Republic of China" in 2018 modified the relevant provisions on the confession and confession leniency system after amendments.Implementation nationwide.In order to refine the issues related to the confession,confession and punishment leniency system,in October 2019,the “Two High and Three Departments” jointly issued the “Guiding Opinions on the Use of the Leniency System of Guilty Plea”.The basic principles,application scope and Relevant issues such as the conditions,the responsibilities of the judicial organs at different stages of the lawsuit,and the protection of the rights and interests of the prosecuted and the victim in the confession and confession punishment case were explained,and some problems in the judicial practice of confession and confession punishment system were resolved.This law provides norms and guidelines for the further implementation of the confession and punishment leniency system in the future.During the operation of the system,it is not uncommon for the prosecuted person to confess his guilt and confess his punishment.In order to investigate the issues related to the rescission of the prosecuted,the concept and connotation of repentance should be clarified first.Repentance in the confession and punishment system is a behavior of the prosecuted person,and it is also a procedural right enjoyed by the prosecuted person.The right of rescission refers to the right of the prosecuted person to challenge some or all of his "confession","confession" and procedural simplicity after confession and confession.The prosecuted person's rescission behavior is justified,and the prosecuted person should be given the right to regret.Giving the prosecuted person the right to regret is a requirement to protect the prosecuted person's voluntary confession and punishment,and it is also a requirement of procedural justice.The exercise of the right of repentance guarantees the procedural option of the prosecuted person.Relief and the right to repentance have the value of safeguarding judicial justice and protecting human rights.The special features of the right of rescission include: first,the right subject of the right of rescission is specific,the right of rescission is the exclusive right enjoyed by the respondent,and the right subject of the right of rescission is limited to the respondent himself.Second,the right to repentance is a compound right.The right of confession of a person who has been pleaded guilty to punishment in the leniency system is a procedural right and a substantive right.Third,the right of rescission is a remedy right,a remedy for the damage to the lawful rights and interests of the person being prosecuted,and to a certain extent the restriction and sanction of public power.Fourth,the right to confession exists at each stage of the litigation.Because the confession and confession system run through the entire process of criminal proceedings,the respondent can express his willingness to plead guilty at any stage of the litigation.Correspondingly,the respondent's right to confession also covers each Litigation stage.Fifth,the exercise of the right of rescission of the respondent should not be restricted by "justifiable reasons".The "justice" is only a factor considered by the trial authority after the repentance of the respondent,not a threshold for the exercise of rights.The prosecuted person has various types and methods of exercising the right of rescission.According to the connotation of the right of rescission,the types of rescission include rescission for "confession",rescission for "confession and punishment",and rescission for the choice of procedure.The respondent can exercise the right of rescission both in writing and orally,and can directly express his objections to "confession","confession and punishment" and simplified procedure,or indirectly exercise the right of rescission.At different stages of litigation,exercising the right of rescission against different subjects will have different specific legal consequences.On the whole,if the person prosecuted repents at the pretrial stage,his guilty confession is no longer accepted,and the written statement of confession and confession has been signed,the written statement is invalid,the procuratorate comprehensively reviews the factual evidence,and prosecutes in accordance with the law;Repentance,the expedited procedure or summary procedure being applied immediately ended,and after the conversion of the procedure according to law,the people's court tried the case according to law;if the prosecuted person repented and appealed after the first instance decision was made,the court of the second instance court made a judgment in accordance with the law.If the prosecuted person confesses his confession after confessing his punishment,his guilty confession shall be ruled out,regardless of whether it is illegal for the case handler to collect the guilty confession.Where illegal evidence collection is involved,illegal evidence exclusion procedures shall be initiated in accordance with the law.In the subsequent trial,the standard of proof of the case cannot be lowered due to the lack of confession of the person charged.The sentencing of the prosecuted person after repentance shall be based on the "same case and same sentence" regardless of the circumstances of his confession and confession.In judicial practice,there are four reasons that lead the respondent to exercise his right of rescission: the confession and punishment are involuntary and non-knowledge;new facts and evidence that are beneficial to the respondent appear;the public prosecution organ changes the sentencing suggestions arbitrarily;The court did not adopt the sentencing recommendation.Factors restricting the rescission of the prosecuted person mainly include whether the respondent cannot determine the negative impact of the previous confession on the conviction and sentencing after the exercise of the right of rescission,and the fear of retaliatory sentencing by the judiciary after the use of the right of rescission.Although the respondent enjoys the right to repentance after confession and confession,the original intention of the leniency system for confession and confession is to further streamline and simplify the flow and improve the efficiency of litigation.The rescission of the respondent will undoubtedly increase the judicial burden.Therefore,in order to reduce the rescission of the prosecuted person,judicial control should be exercised from the source,and the potential external repentance factors should be eliminated by strengthening the voluntary protection of the pleaded confession and punishment of the prosecuted person,and clarifying the binding of the sentencing proposal on the judicial organs.To ensure the smooth implementation of the confession and punishment system.