Research On The Problems Of Admission Of Guilty And Acceptance Of Punishment And Rescission Of The Accused

On October 24,2019,the "two high schools and three ministries" issued the guidance on the application of the leniency system of confession and punishment.Among them,there are clear provisions on the defendant's Estoppel and withdrawal before the prosecution and at the trial stage.It is a kind of action that the accused pleads guilty and repents.What it reflects is that the accused has the right to plead guilty and repent.On the one hand,as a kind of relief means,confession and punishment estoppel of the accused can guarantee the voluntary confession and punishment of the accused,timely and effectively correct their erroneous expression of intent,and protect the human rights of the accused according to law;on the other hand,confession and punishment estoppel of the accused can restrict the way of evidence collection of the case handling organ,so as to curb the extortion of confession by torture and prevent prosecution The abuse of power of the prosecution and the judicial organs to avoid the occurrence of unjust,false and wrong cases.In the process of implementing the system of leniency of confession and punishment,there are not a few cases in which the accused appeals for estoppel.Through the sorting of judgment documents,it is found that the reasons for the defendant's estoppel on appeal mainly include: first,the defendant's estoppel due to voluntary damage,such as being induced by the judicial organ,being forced to take the name of another person to commit a crime,etc.;second,estoppel due to exceeding psychological expectations,such as sentencing too heavy,the defendant's intention to stay for the sentence,etc.;third,estoppel based on the change of circumstances,such as prosecution The procuratorial organ proposed to temporarily change the sentencing,the court imposed punishment beyond the sentencing range,and new performance of repentance appeared after the first trial decision;fourthly,repentance based on the error of the first trial decision,such as the fact error of the first trial decision,the application of law error,etc.The reasons for the defendant's appeal estoppel are as follows:the defendant is faced with insufficient voluntary protection,limited help from the lawyer on duty,damaged trust interests,"appeal" leads to "protest",incorrect consultation between the prosecution and the defense,etc.,which makes it difficult for the reasonable rights andinterests of the defendant to be effectively protected,and then leads to the defendant's withdrawal of the plea of guilty and punishment or appeal estoppel.The confession and punishment of the accused is a means of right relief,which can guarantee the voluntary nature of the accused's confession and punishment.However,the confession and punishment of the accused will inevitably affect the stability of the system of leniency of confession and punishment and waste judicial resources.Therefore,the system should be improved from two aspects: the protection of the accused's Estoppel and the prevention of the accused's estoppel.On the one hand,we should guarantee the right of full estoppel.First,the right of appeal of the accused should be guaranteed.To protect the right of appeal of the accused is the inevitable choice for the leniency of confession and punishment system to run well along the original intention of the system design;secondly,to standardize the right of protest of the procuratorial organ;thirdly,to establish the principle of prohibiting adverse change;if the accused pleads guilty to punishment and retracts to appeal,the court of second instance shall not be able to appeal against the accused,no matter what reason the procuratorial organ brings the protest,unless there are specific circumstances People make a more unfavorable evaluation than the first trial.On the other hand,in order to ensure the stability of the statement reached by both sides of the prosecution and the defense,and to prevent the accused from withdrawing the plea of guilty or the appeal of estoppel at will,we should start with the specific system and take precautions against it in many aspects.First,we should ensure that the defendants who plead guilty and plead for punishment get effective legal help,ensure that the defense lawyers participate in the negotiation process of pleading guilty and pleading for punishment leniently in the whole process of criminal proceedings,and play an all-round role in safeguarding the legitimate rights and interests of the defendants,especially ensure that the lawyers are present during the investigation and trial,so as to ensure the authenticity and voluntariness of the pleading guilty and pleading;second,we should balance the "pleading Association" between the prosecution and the defense Business ",to ensure equal status and information symmetry between the prosecution and the defense.Third,establish the second instance "voluntary" review mechanism.For the case where the accused pleads guilty and admits punishment in the first trial stage,if the accused files an appeal for estoppel on the ground of voluntary damage after the first trial decision,the court of secondinstance shall start the voluntary review procedure to ensure the voluntary nature of confession and punishment.