Research On Voluntary Guarantee Of Prosecuted Pleadings And Penalties

Since October 2018,China has officially applied its admission of guilt and punishment system to criminal cases across the country.But in this process,it also exposed the problems existing in China’s admission of guilt and punishment system.If the utilization rate is low in the whole country,it has not reached the expectation;How to understand and grasp confession;How the proceedings apply;How to guarantee the voluntary admission of guilty persons;These are the difficult problems that perplex the judicial staff.Recently,"two or three departments" jointly issued the "guidelines on the application of the lenient system of admission of guilt and punishment"(hereinafter referred to as the "guidelines").The problem of the "guidance" to guide and cohabitancy,which made it clear that protected accused guilty pleas forfeit their voluntary is used the first condition of system of plea forfeit,accused person voluntary security is the basis and soul of system applies,pleaded guilty to forfeit their system efficiency values oriented,but cases should abide by justice bottom line,guarantee accused person voluntary confession forfeit can maintain fairness and justice of case already,also can improve the case settled process.In this paper,from the perspective of guaranteeing the voluntary admission and punishment of the accused,the problems and risks of voluntary guarantee in the current system are explored,and the countermeasures are sought to improve the voluntary admission and punishment system.By comparing and analyzing how the relevant systems outside China guarantee the voluntary admission of guilt and punishment of the accused,the paper summarizes the general rules and seeks for references,thus enlightening the construction of the voluntary guarantee mechanism in China.Analysis combining theory and practice,pleaded guilty to forfeit their voluntary security problems and explore the causes,on the one hand,interpret existing specifications(" guidelines "),to find a loophole in the legislation construction level,on the other hand,the retrieval,summarizes a plea of forfeit their cases in the judicial practice,to analyze causes of one by one in the search for a guarantee accused person voluntary solution.But at present,there are still some problems that have not been explained and solved.For example,after the court makes a first-instance judgment,the defendant goes back on his word and appeals.Can the procuratorial organ protest? The "pleading-like" problem of duty lawyers,the lack of lawyers’ participation in the trial,the inability of the accused to get the effective help of duty lawyers,the formalization of judicial review,and the unsound mechanism of procedure rotation.For this reason,the duty lawyers should tend to be "defenders",which is conducive to the realization of compulsory defense.In addition,the duty lawyers should enjoy the same right of complete examination as the defense lawyers and provide effective legal assistance,so as to play a greater role in guaranteeing their right to know.In order to prevent the occurrence of forced and false confession and punishment in the interrogation stage,the current sound recording and video recording system should be improved,and the court should accurately understand and grasp the judgment criteria of confession and punishment,and carry out substantive judicial review.The procuratorial organ should protest cautiously according to the actual situation,and should not exercise the right to protest rashly.Judicial organs perform the duty of informing in accordance with the law and further improve the system of informing rights.This article is divided into the following four aspects:The first chapter of this article introduces the basic contents of the voluntary guarantee of the pleaded guilty and punishment of the prosecuted person,which is divided into three aspects: the connotation of the pleading guilty and the punishment of the guilty person,the voluntary definition of the pleading guilty and the punishment of the prosecuted person,and the legal basis and value analysis to protect the voluntariness of the pleaded guilty of the guilty person.The concept and characteristics of confession and punishment constitute the connotation of the system of confession and punishment.Voluntary meaning and judgment standards constitute voluntary definition.The third part studies the significance of guaranteeing the existence of voluntariness and the legal basis for guaranteeing the voluntariness of the prosecuted person.This part details some basic concepts of the system of pleading guilty and punishment,what is the value of guaranteeing the voluntariness of the person being prosecuted,and why there are legal reasons for ensuring the voluntariness of the person being prosecuted.The second chapter is a comparative investigation and enlightenment of the extraterritorial protection of the prosecuted person’s voluntary confession and punishment.On the one hand,we separately examine the construction of voluntary guarantees in the civil law system,the Anglo-American law system,and the hybridist litigation model similar to the plea confession procedure.The focus is on the analysis and summary of judicial review,lawyer assistance,and the protection of the right to know in Germany,the plea bargaining process in Germany,the US plea bargaining system,and Italy’s application of penalties procedures upon request.On the other hand,it explores the important enlightenment of these extraterritorial systems in guaranteeing the prosecuted person’s voluntary mechanism to our country.We will improve the plea punishment procedure in my country from the three aspects of strengthening the prosecuted person’s voluntary rights mechanism,establishing a judicial power check and balance mechanism,and following the principles of judicial final judgment.In Chapter 3,we return to the status quo of guaranteeing voluntariness in the cases of pleading guilty and pleading guilty in China,and the problems contained therein.Analyze the current situation of China’s confession and punishment procedures from legislation and judicial practice,and investigate and summarize the problems that have occurred in the two years from 2018 to 2019.Analyze the gaps and inadequacies of the rules of the "static" legal system and the "dynamic" legal practice,and study the causes of the current difficulties and obstacles.Chapter IV in the derivation and summary of the above-mentioned overall content,the preliminary design of specific measures from the legislative and judicial practice level.At the legislative level,clear judgment standards,the establishment of compulsory defense and the establishment of evidence disclosure systems,and the establishment of a procedure reversal mechanism.Judicial practice strengthens voluntary review,improves the duty lawyer system,rights notification system,and synchronous audio and video recording system.The intention is to further guarantee the voluntariness of the person being prosecuted from the perspective of "dynamic" and "static" and improve the procedure of pleading guilty.This article focuses on the protection of the voluntariness of the prosecuted person’s guilty plea and punishment as the core of the study,discusses the significance of the voluntary protection and the lessons that can be learned from outside the region,and studies the problems and causes of voluntary protection in China at present,with a view to further improving the voluntary protection mechanism Provide some feasible suggestions for the good operation of the confession and punishment system.