| The trial centered litigation system reform aims to strengthen the justice of the trial,while the leniency system of guilty plea seeks the efficiency of case handling.There is a conflict between justice and efficiency.Especially in the reform of the leniency system of guilty plea,the contradiction between the procuratorial organ leading and the trial as the center is very obvious.The contradiction lies in the absence of judicial power due to the lack of judgment power in the system.The challenge of the charge suggestion and sentencing suggestion to the judicial power in the sentencing suggestion led by the procuratorial organ makes the judicial power at a loss,and even appears the phenomenon that the procuratorial power oversteps the judicial power,and finally leads to the deviation of practice from the value of justice.According to the experience of foreign consultative judicature,under the influence of liberalism,procedural justice and other ideas,American judges have changed from passive neutrality to involvement and influence the result of case negotiation in different ways in the American plea bargaining system.In Germany,plea bargaining is conducted directly under the guidance of a judge.Therefore,the judge’s intervention in the consultation activity can be used for reference.At present,the judge’s intervention in sentencing consultation in China mainly faces the problem of ideology and system construction.There are many contradictions in the concept of judges’ intervention in consultation.From the perspective of procedure,the judge’s intervention in the negotiation is a violation of the traditional concept of procedural justice,which will lead to the nihilism of procedure.From the point of view of the result,the judge’s intervention in the negotiation is beneficial to efficiency but harmful to the fairness of the result.The existing contradiction solution space,first of all,judge the issue though,against the traditional procedural justice,is the needs of the development of consultative procedural justice,in consultative judicial judge need to blend in with the new attitude change after the lawsuit pattern,play a different role in different stages,exerting substantial influence the result of the negotiation.Secondly,from the point of view of the result,agreeableness is an important factor for the result of the negotiation to become the result of the trial.Only the judge can make a commitment to the result of the agreement.If the commitment of the procuratorial organ is overturned in the trial stage,it will hinder the judicial integrity.Thirdly,the intervention of the judge in the negotiation is conducive to the scientific allocation of the rights of charge,defense and trial.In terms of system construction,participation mode is related to case stage and difficulty degree.In the prosecutor-led review and prosecution phase,judges participate in sentencing in a negative way.For common and simple routine cases,it is subject to the joint participation of various parties in formulating sentencing Guidelines for common Crimes(Trial),and local courts will make detailed provisions according to local special circumstances.For difficult cases,it is necessary to set up rotating judges to explain the legal issues in the case.In the trial phase,judges are required to take advantage of pretrial meetings to participate in sentencing negotiations. |
