Research On The Mechanism Of Sentencing Consultation Under Leniency System For Pleading Guilty And Punishment

On November 16,2016,Supreme People's Court,Supreme People's Procuratorate,Ministry of Public Security,State Security and Ministry of Justicejointly promulgated the "Measures for the Pilot Work on the System of Pleading Guilty,Pleading Punishment and Leniency in Criminal Cases in Some Areas",Formally established and launched a two-year trial of the leniency system in 18 cities such as Beijing and Shanghai.The trial originated from three major needs: the improvement of litigation efficiency,the optimization of litigation procedures,and the policy of Combining Leniency with severity.In the course of the trial,the Supreme Procuratorate put forward the idea of reforming the system of plea bargaining and sentencing consultation with the participation of lawyers by referring to the reasonable elements of plea bargaining.And In the pilot practice,some procuratorates also explored the negotiation mechanism in varying degrees.Sentencing consultation is an important and indispensable part of the pilot process of the leniency system of confession and punishment.This mechanism initiates the Chinese-style consultation of prosecution and defense,highlights the principal position of the accused in criminal proceedings,and realizes the improvement of litigation efficiency and judicial justice through consultative justice.The consultation of sentencing is the basic way to realize the leniency of pleading guilty and pleading guilty.It is also the consultation between the procuratorial organ andthe accused and their defenders on the specific penalty of the case and the sentencing circumstances possessed by the accused.The result of negotiation is presented in the form of a concluding document formed by the prosecution and the defense.The concluding contents have different degrees of binding force on the three parties.The trial of lenient system of pleading guilty and pleading punishment will soon come to an end.The procuratorates in various places have formed certain experience and practice in the exploration of sentencing consultation mechanism,but also exposed some problems,which have certain research value.Based on a brief overview of the system of leniency in pleading guilty,this paper clarifies the concept,content,effectiveness of sentencing negotiation and its relationship with the system of leniency in pleading guilty through the combination of basic theoretical research and experimental research,introduces the experience and practice of some pilot cities in the protection of the right to defense,the extent of consultation and the right to relief through consultation.It mainly summarizes and analyzes the experimental data and situation of the People's Procuratorate of P District in S City,and sorts out the problems exposed in the process of the trial of the consultation mechanism for sentencing.At the same time,through the horizontal comparison and reference of relevant systems outside China,I hope to borrow the stones from other countries,improve the scientificity of the article's argument,highlight the characteristics of the sentencing consultation mechanism in China,and provide certain reference value for the further formation of a sentencing consultation mechanism in line with China's national conditions,which can effectively balance the efficiency and fairness.This article is divided into five parts.The first part is the basic theory,which is divided into two sections.The first section introduces the basic connotation and realistic basis of the leniency system of confession and punishment.The second section introduces the concept,content and effectiveness of the sentencing consultation mechanism.The purpose is toclarify the concepts of confession and punishment and the relationship between the two,and to clarify the research object of the article.The second part is the empirical study of sentencing consultation,this part introduces the achievements made by Xiamen,Qingdao,Shanghai and other pilot cities in the process of trial sentencing consultation on the protection of the right to defense,the extent of sentencing reduction and the right to negotiate relief,and mainly introduces the experimental data and characteristics of pleading guilty and pleading guilty in P District Procuratorate of S City,and points out that the process of sentencing consultation in judicial practice is in the form,the preferential treatment of sentencing is difficult to control,the victim's opinions are vague,some negotiation results are not really lenient and supervision is absent.The third part focuses on the horizontal comparative study of sentencing consultation mechanism.This part introduces the plea bargaining system in the United States,the sentencing consultation system in Germany and the plea bargaining system in Taiwan,and makes a comparative analysis with the sentencing consultation mechanism in our country,which is still in the pilot stage.The fourth part is the embodiment of this article's application value.In view of the deficiencies reflected in the trial process of sentencing consultation,this paper puts forward some suggestions,such as standardizing the process of sentencing consultation,defining the range of preferential sentencing,protecting the rights and interests of the parties and improving the mechanism of sentencing consultation and supervision.