Research On The Penalty Immunity Of Tainted Witness

The Penalty Immunity of Tainted Witness,also known as the stained witness system,refers to the system in which judicial organs reach "agreements" with those prosecuted for minor crimes in joint crimes or associated crimes through interest balance and punish those seriously accused.China’s current criminal legislation has not explicitly stipulated the tainted witness immunity system,but there are relevant provisions that reflect the internal spirit of the system,such as voluntary surrender,meritorious service,guilty plea and punishment leniency system,discretionary non-prosecution system,etc.There still exist cases of applying the stain witness throughout the judicial practice.It is mostly concentrated on the organized crimes such as bribery crime,drug crime and mafias.But due to the lack of clear legal provisions as well as restriction and supervision of the law,there remain phenomena violating human rights because of the abuse of judicial power and stain witnesses acclaiming the truth of relevant cases and assisting work prosecution authorities but being informed of uncertain "commitment" and limited protection by judicial organs according to current basic regulations.All of them not only decline their incentive of testifying,but also prove to be not conducive to the public credibility of the judiciary.Although the plea of guilt leniency system has achieved good results,the uncertainty of the sentencing of the guilty plea leniency system still makes some suspects and defendants hesitate,having them weighing their interests between obtaining uncertain sentencing after pleading guilty and concealing some criminal facts,which to some extent hindered the detection of the case.Building the Penalty Immunity of Tainted Witness can well solve the dilemma above.Through crime immunity and the increasing protection of stained witnesses,the worries of stained witnesses’ testimony can be solved,and eventually state the facts of relevant cases truthfully,so as to achieve an accurate and effective crackdown on those who have been prosecuted for serious crimes in organized crime such as embezzlement and bribery,drug crimes and underworld crimes.The system seeks the best fit among the fight against crime and the guarantee of human rights,physical authenticity and due process.While meeting the practical needs of criminal justice practice,it places more emphasis on the pursuit of modern rule of law to prevent abuse of power.At present,the United Kingdom,the United States,Germany,Canada,Australia and other countries,as well as Chinese Taiwan,Chinese Macao and Chinese Hong Kong,have established the system and achieved good results.With the acceleration of the democratic rule of law process in China and the full implementation of the United Nations Convention against Corruption in China,it should be historically inevitable to establish the Penalty Immunity of Tainted Witness.This article is mainly discussed in four parts:The first part mainly defines the meaning and value concept of tainted witness and The Penalty Immunity of Tainted Witness.First of all,explain the meaning of stained witness,and analyze the testimony of tainted witnesses and the confessions of co-defendants,tainted witnesses and informants,and tainted witnesses and undercover agents;secondly,define the meaning of The Penalty Immunity of Tainted Witness and research the tainted witness immunity system and meritorious service,the relationship and difference between the system,the leniency system for admitting guilt and accepting punishment,and the plea-bargaining system;finally,the value concept of The Penalty Immunity of Tainted Witness is expounded.The second part mainly discusses the current situation of our country’s The Penalty Immunity of Tainted Witness.By referring to the relevant cases of "tainted witnesses" and related legislation with similar functions,this paper expounds the current situation of legislation and the application of judicial practice,and analyzes the shortcomings of legislation which has similar features of this system in our country and the problems in the application of judicial practice.The third part expounds the necessity and feasibility of the introduction of The Penalty Immunity of Tainted Witness in our country according to the existing legal provisions and judicial practice in China.We will justify its necessity from the following six fragments,including the efficiency of combating serious crimes,the need to solve the problem of evidence collection,the need to solve the problem of applying the law in judicial practice,the necessity of achieving maximum fairness to minimize costs,the urgency to motivate the accused to cooperate with the prosecution agency,and the need to fulfill the obligations of international conventions.At the same time,we will justify the other one from three sections,involving criminal policy,legislative basis and judicial practice.the fourth part can be concluded that by comparing The Penalty Immunity of Tainted Witness outside the mainland and combining with the legislative provisions,the assumption of building The Penalty Immunity of Tainted Witness can be primarily formulated.Specifically,we come up with the construction path of the system from four aspects:the scope of applicable cases,the limitation of applicable objects,the applicable mode,and the operation mechanism.At the same time,it is proposed to establish a supporting mechanism corresponding to the system to further ensure the benign operation of the system.