A Study On The Defendant's Right Of Appeal In The Case Of Leniency Of Confession And Punishment

The nationwide reform of the leniency system of confession and punishment began with the measures on the pilot work of leniency system of confession and punishment in criminal cases in some regions issued by the Supreme People's Court,the Supreme People's Procuratorate,the Ministry of Public Security,the Ministry of State Security and the Ministry of Justice in 2016.When the CRIMINAL PROCEDURE LAW was revised in 2018,the pilot experience was summarized and improved.Not only the leniency of confession and punishment is defined as a basic principle in China's criminal procedure,but also the leniency of confession and punishment system is embedded in the criminal prosecution procedure.The system of leniency of confession and punishment has a special legislative orientation.There is a tension between it and the value pursuit of the right of appeal,which is manifested in the conflict between efficiency value and justice value.This leads to theoretical and practical disputes about whether the defendant's right of appeal should be preserved in the case of leniency of confession and punishment.There are two views about the defendant's right of appeal in the case of leniency of confession and punishment: the theory of comprehensive reservation and the theory of limited reservation,including the theory of quick determination and the theory of conditional restriction.Based on the value choice of leniency of confession and punishment system,the agreement embodied in leniency of confession and punishment system and the contractual attribute reflected in the statement of confession and punishment,this paper further analyzes the legitimacy of restricting the defendant's right of appeal.Through the investigation of the exercise of the defendant's right of appeal in the case of leniency of confession and punishment,it is found that the response strategy of the judicial organ in practice is actually helpless,specifically manifested in the prosecution organ's protest and the people's court's rejection of the reason for appeal.The leniency system of confession and punishment in China is similar to the negotiation system of confession in Germany and the plea bargaining system in the United States in basic value orientation.The experience of Germany and the United States shows that both countries have certain restrictions on the defendant's right of appeal,that is to say,it has become a general rule to restrict the defendant's right of appeal in the consultative justice.Therefore,on the basis of the practical experience of our country and the reasonable experience of foreign countries,the right of appeal of the defendant in the case of leniency of confession and punishment should be appropriately restricted.In the case of leniency of confession and punishment,we can not ignore the judicial cost and the bearing capacity of the court of second instance completely,and can not disobey the legislation to deprive the defendant of the right of appeal at will.Therefore,on the premise of retaining the defendant's right of appeal,the defendant's right of appeal is limited by the conditional waiver clause of the statement of guilty plea and punishment.By improving the lawyer on duty system and establishing the negotiation system of pleading guilty and punishment,we can ensure that the conditional waiver system of the right of appeal can proceed smoothly.