Research On The Problem Of Repentance Of The Accused In The Leniency System On Admission Of Guilty And Punishment

In October 2018,the criminal procedure law officially included the leniency system on admission of guilty and punishment.In October 2019,the guiding opinions on the application of the leniency system on admission of guilty and punishment,which made specific provisions on the basic principles of the leniency system on admission of guilty and punishment,the protection of the rights and interests of the parties,etc.Since 2016,this system has been on the right track,and the application rate of cases is gradually increasing.In addition to the good prospect of the leniency system on admission of guilty and punishment,we should also pay attention to the phenomenon of withdrawal after confession and appeal after the first trial.These phenomena reflect that there are some problems,such as the lack of attention to the issue of the accused's repentance and the imperfection of the relevant mechanism.The issue of the accused's repentance reflects the effect of the right protection of the accused and the implementation of the leniency system on admission of guilty and punishment.Therefore,it is necessary to make a systematic study on the repentance of the accused.The core issue is: whether to allow the accused to repent in the case of confession and how to build the mechanism.Based on this,this paper through the investigation of the confession and punishment leniency system in judicial practice,summarizes the existing shortcomings,combined with the relevant experiences,and puts forward suggestions for the improvement of the accused's repentance mechanism of the leniency system on admission of guilty and punishment.The paper is divided into four parts:Chapter One is an empirical analysis of the situation of accused's repentance.First of all,clarify the stage and manifestation of repentance.The stages are the process of examination and prosecution,trial and the period of appeal after the first trial decision.The manifestations are withdrawal of guilty or punishment,and submission of appeal.Secondly,specify the content of the accused's repentance,including crime,penalty and procedure choice.Thirdly,by analyzing the criminal judgment of the case of pleading guilty and admitting punishment,the reasons of the accused's repentance are sorted out.Finally,the accused's repentance will not only increase the risk of punishment,but also increase the judicial burden for the case handling organs.Chapter Two analyzes the existing problems in the cases of admission of guilty and punishment.Firstly,in the exercise of the right of repentance,there is a lack of perfect operational legal basis.Secondly,the judicial disputes caused by the exercise of the right of repentance need to be solved urgently,such as how to deal with the evidence before repentance,whether judicial personnel need to be replaced,etc.Thirdly,the procedural response mechanism after repentance is not perfect.After the withdrawal of confession,there are some deficiencies in the judicial response process and appeal mechanism.Fourthly,the prevention of the source of the accused's repentance is insufficient,in other words,the voluntary guarantee of confession and punishment is not sufficient.Chapter Three examines the provisions of the right of accused's repentance in different legal systems.For the plea bargaining system of the common law system,select the representative experience of the United States and Britain;for the negotiation system of the civil law system,select the experience of Germany,France and Taiwan Province.In conclusion,these countries and regions have common features in the exercise of the right,the use of confession,the appeal system and thevoluntary guarantee of the accused.This also provides some reference ideas for the improvement of relevant mechanisms in China.Chapter Four puts forward suggestions to improve the mechanism of accused's repentance.First,to guarantee the exercise of the right of repentance.From the legal level,the right of repentance is clearly given to the accused,the relevant provisions on the exercise of rights are detailed,and the right notification obligation of the case handling organ is emphasized.Second,to solve the disputes after the accused exercised the right of repentance.The confession before repentance should be treated according to different circumstances.From the current judicial practice in China,it is not suitable to replace the judicial investigators after repentance,but it is necessary to prevent retaliatory accusation and trial through the implementation of supporting mechanisms and multiple measures.Third,improve the procedural response mechanism after the accused's repentance.On the one hand,we should refine the response and handling rules of repentance before the first trial;on the other hand,we should improve the appeal mechanism of confession and punishment cases.Fourth,to reduce the probability of repentance by ensuring the voluntary of negotiation.In a word,it is very important to construct a perfect mechanism of accused's repentance,which can promote the implementation of the leniency system on admission of guilty and punishment.In view of the existing problems and theoretical disputes,this paper attempts to put forward ideas on the improvement of the mechanism of accused's repentance,in order to further develop and implement the leniency system on admission of guilty and punishment in practice.