Study On The Voluntary Protection Of The Accused In The Lenient System Of Confession And Punishment

The lenient system of confession and punishment was officially incorporated into the criminal procedure law in 2018.On October 24,2019,the supreme people's procuratorate,the supreme people's court,together with the ministry of public security,the ministry of state security and the ministry of justice,formulated the guidance on the lenient system of confession and punishment(hereinafter referred to as the guidance)to improve the system.It is the basis for the application of the lenient system of confession and punishment to guarantee the voluntary admission of the accused.It is also the premise of a lenient sentence for the accused.In the design of the lenient system of confession and punishment,the judicial proceedings of some cases that are applicable to the system is reduced,which results in the loss of the litigious rights of the accused in practice.Therefore,how to guarantee the voluntary admission of the accused becomes the key of the system.This thesis starts from the lenient system of confession and punishment and discusses the voluntary safeguards for admission of guilt in combination with the loopholes of the system in practice.The thesis is divided into four parts.The first part discusses the basic theory of the voluntary of the accused in the lenient system of confession and punishment.First of all,the current criminal procedure law of our country and the guidance on the lenient system of confession and punishment are sorted out,and then from the two aspects of procedural law and substantive law summarizes the legal provisions with similar legislative spirit with the lenient system of confession and punishment.Second,in-depth discussion of the "voluntary" nature,connotation and the reverse definition of voluntary.Finally,from three aspects,the content of voluntary confession of the accused is clarified.The second part compares similar legal systems outside the region and gives reference.The first section introduces the American plea bargaining system and thevoluntary protection mode of the accused under the system.The second section introduces the German criminal consultation system and its voluntary guarantee model.The third section describes the reference value of the similar system of the two countries to China in guaranteeing the voluntary of the accused.The third part analyzes the shortcomings of the voluntary guarantee of the lenient system of confession and punishment in China.To be specific,the system of evidence discovery remains to be explored,the participation of on-duty lawyers is limited,the standard of voluntary review by the court is not uniform,and there are loopholes in the situation of no need signing affidavit.The fourth part puts forward the corresponding safeguard measures according to the problems in practice.From the point of view of the right of the accused to know everything,it is proposed to fully reveal the evidence and grant the right of objection to the accused.At the same time,it proposes to improve the participation of on-duty lawyers in cases,and proposes corresponding measures from two aspects,namely,right setting and system setting.And this thesis discusses the procedure and standard of the voluntary examination of the court,proposes to establish the procedure of the voluntary examination before and in court,and clarifies the judgment standard of the voluntary examination.Some suggestions are put forward to improve the withdrawal right of the accused from legislative and practical aspects,including stipulating the subjects,objects and ways of exercising the withdrawal right,restricting the exercise of the withdrawal right in different stages,and clarifying the legal consequences of exercising the withdrawal right.At last,it improves the situation that there is no need signing the affidavit,and the judicial organ should insist on the standard of conviction of never suspected crime.