| In recent years,there has been a heated discussion in the academic community on the issue of confession and punishment.In the process of applying the system of lenient admission and punishment,although the number of cases of the respondent’s repentance is still in a controllable range and does not affect the overall operation of the admission process,the influence caused by the respondent’s repentance cannot be ignored.Moreover,as the subject’s retraction still belongs to the legislative vacuum zone,and there are only relatively principled provisions,the case handling organ will inevitably face the embarrassing situation of "no recourse" when the subject’s retraction occurs.In this context,it is particularly important to deal with the subject’s reneging and reduce the rate of the subject’s reneging.The purpose of this paper is to interpret the phenomenon of repentance of the pursued in the lenient system of admission of guilt.The first part is the basic theory of confession and punishment.First,the definition of relevant concepts of guilty admission and penalty withdrawal,the specific meanings of "guilty admission","guilty admission" and "regret withdrawal" are analyzed,and the basic connotation of guilty admission and penalty withdrawal is expounded.The second is the theoretical classification of the type of reversion of the respondent,mainly according to the "content of reversion" and "stage of reversion" to reveal the form of reversion of the respondent.The third is to analyze the conflict of implied value in the subject’s reversion,mainly focusing on the two legal values of justice and efficiency,and clarifying the "dynamic balance of justice and efficiency" as the guiding ideology for dealing with the subject’s reversion.The second part is the defendant’s reversion to the status quo and its problems.This part mainly elaborates the accused man confessed forfeit their cases in China judicial status and the legislative status quo of turning back,through to the various provinces and regions pleaded guilty to forfeit their greater forfeit system pilot work summary and interpretation and analysis of the related normative legal documents,on this basis,found the accused guilty pleas in China forfeit back problems.First,the right of recourse of the person being prosecuted lacks legal regulation,and the conditions,methods and legal consequences of exercising the right of recourse are not specified in detail,so the operability is not strong.Second,the act of going back on one’s word will lead to the reversal of the procedure and the invalidation of the affix,which will force the case handling organ to go back to the procedure and increase the burden of the judicial organ.Third,some of the accused use the principle of no additional punishment on appeal,choose strategic appeal,abuse of the right of revocation to serve the purpose of the sentence,the judicial organs are faced with the risk of the accused’s malicious revocation.Fourthly,the act of going back on one’s words may annoy the judicial organs and lead to unreasonable difficulties.It may even lead to retaliatory accusations and trials from the judicial organs,and the accused may face the risk of heavier punishment.Fifthly,the evidentiary effect of the confession of the accused after he goes back on his word is controversial.The third part is the analysis of the pattern and cause of the respondent’s recantation.This part intends to start from the perspective of the person being pursued,from the position of the person being pursued,to explore the actual reasons for the person being pursued’s regret,and to sort out the specific reasons for the person being pursued’s regret on appeal by combing through the classic cases of the person being pursued’s regret on the Chinese judgment document network.On the basis of clarifying the cause of the respondent’s retrogression,it reveals the deeper institutional causes behind the retrogression from the outside to the inside.It mainly includes four factors: the lack of voluntary review mechanism,the formless legal assistance,the insufficient supply of sentencing incentive and the unequal status of the negotiating subject.The fourth part is the reference of the contravention mechanism of the respondent outside the region.This part mainly discusses the plea bargaining system in the United States,the plea plea system in the United Kingdom and the criminal negotiation system in Germany.It focuses on sorting out the repentance mechanism of the respondent in the extratorial plea negotiation system,and summarizes the convergence of different plea negotiation systems in dealing with the repentance problem of the respondent.In particular,in terms of the exercise and limitation of the right of recourse of the respondent,the legal effect,and the application of the evidence of guilty plea,the extratorial plea negotiation system has relatively complete legal norms and practical experience,which can provide some useful reference ideas for the mechanism of dealing with the right of recourse of the respondent in China.The fifth part is the concrete measures to construct the contravention mechanism.First of all,the prevention mechanism before the respondent goes back on his word is constructed.By improving the voluntary review mechanism,the sentencing incentive mechanism and the sentencing negotiation model,the voluntary confession of the respondent is ensured,and the role of the sentencing incentive is played to prevent the occurrence of the case of the respondent’s word back.Secondly,we should improve the guidance mechanism for the respondent to go back on his word.By strengthening the legal assistance of lawyers and the interpretation and reasoning work of case handling organs,we can facilitate the respondent to understand the law,enhance the acceptability of the judgment result,and reduce the probability of the respondent to go back on his word.Finally,we should improve the handling mechanism after the person being prosecuted goes back on his word,and regulate the legal effect and evidentiary effect of the person being prosecuted’s word back through relevant legislation that stipulates the right of the person being prosecuted to go back on his word.At the same time,in order to solve the worry of the person being pursued,the principle of no malicious aggravation of punishment should be established.Through the three levels of prevention in advance,guidance in the event and handling after the event to solve the respondent’s retrogression problem. |
