Sentencing Recommendation Under The System Of Leniency For Pleading Guilty And Accepting Punishments

Based on my country’s current trend of increasing crimes in minor criminal cases,the criminal justice system of China is optimizing the allocation of judicial resources and improving the system of leniency for guilty pleading in criminal proceedings while promoting the reform of the trial-centered criminal procedure system,so as to solve the structural contradiction of "many cases and few people".In the legislative design of the leniency system for admitting guilt and accepting punishments,as the red line through the system,sentencing recommendations are not only the product of the agreement,reflecting the basic consensus between the prosecution and the defense on conviction and sentencing,but also has a substantial impact on the final judgment.Therefore,in order to promote the precision of sentencing suggestions,the prosecution,in accordance with the provisions of Article 176 of the Criminal Procedure Law,is also constantly implementing the standardized reform of sentencing recommendations,which is linked with the procuratorate’s dominant status in the cases of guilty plea,as the key to implement of the leniency system for admitting guilt and accepting punishments.Along with the reform of sentencing standardization and the leniency system,the reform of sentencing recommendations in our country has experienced two historical periods,from practice exploration to system perfection,namely "as the right of a procurator to seek punishment" and "as the agreement of prosecution and defense",and have different system functions.The application focus of sentencing recommendations has also shifted from general cases to guilty pleading cases,which have different institutional patterns.That is to say,in the case of not guilty,the sentencing recommendation made by the prosecution should be mainly the range punishment and the precision punishment as the auxiliary;In the case of confession and plea,the precision punishment should be the main with the range punishment as the auxiliary.Under the leniency system for admitting guilt and accepting punishments,influenced by the consultative justice,the inherent properties of sentencing recommendations in the cases of guilty plea have changed,which have the properties of power and responsibility,agreement and effectiveness.According to criminal process,sentencing recommendations have different legal functions because of the different litigious stages.In the investigation and prosecution phase,the sentencing recommendation is the precondition and foundation of the negotiation between the prosecution and the defense,and has the function of promoting the defense to actively choose to admit the crime or avoiding the defense’s repentance.In the trial phase,as the result of the consensus between the prosecution and the defense,the sentencing recommendation has a certain binding force on the judgment of the case and can effectively restrain and regulate the judge’s sentencing discretion.In short,it can be inferred from the procedural function of the precision sentencing advice that it has the dual connotation of certainty and standardization,and should be given priority to the standardization.At the same time,the emphasis on equal consultation of the prosecution and the defense and coordination of the prosecution and the trial in the accuracy reform of sentencing recommendations,have also led to great changes in the structural principle of equality,separation and neutrality in criminal justice.Under the circumstance of the invalidation of the concept of procedural justice and the reform of the structural principle of criminal procedure,the practical problems existing in the judicial reform process can be summarized in time by analyzing the horizontal litigation structure and vertical litigation structure under the accuracy of sentencing recommendations,which provides the path for the improvement of the theoretical system of sentencing advice.From the perspective of horizontal structure,in the case of guilty plea,the consultative judicial concept and the power-based logic of handling cases are interwoven together,which leads to the formation mode of pre-trial sentencing advice from the supposed equal consultation type to the actual power-oriented type.In the trial phase,the court should adopt the sentencing recommendations put forward by the prosecution in the cases that meet the conditions of the leniency system,unless the sentencing recommendation is obviously improper and the prosecutor refuses to adjust it or to be still obviously improper after adjustment,showing the legal relationship of the coordination of prosecution and trial.From the vertical structure,the accuracy of sentencing recommendations has caused the focus of criminal proceedings to shift from the trial to the investigation and prosecution stage,and the prosecutors play a leading role in the judgment in the confession cases according to the sentencing recommendations,which leads to the phenomenon that the judges emotionally reject the sentencing recommendations after reviewing.The divergent views on the sentencing recommendations can be traced back to the contradiction and conflict between the procuratorate’s dominant status and the doctrine of trial center.Therefore,in order to implement the certainty and fairness of the sentencing recommendations,we should not only take the justice of sentencing entity as the value basis,implement the principle of adapting crime and punishment,improve the sentencing guidelines,but also follow the concept of the consultative procedural justice,to build and improve the evidence discovery system and the participation mechanism of judges to ensure equal negotiation between the prosecution and the defense in the pretrial procedure,and build different sentencing recommendations applicable rules and the interaction mechanism between the prosecution and the court according to the seriousness of crimes in the trial procedure.