Research On The Sentencing Negotiation Mechanism Of The Cases Of Plea And Punishment

The formal establishment of the plea system in China’s criminal procedure law is not only a further simplification of the criminal procedure,but also a good absorption of the plea bargaining system in common law countries,and the establishment of the negotiation mechanism of the prosecution and defense with Chinese characteristics.In this consultative judicial procedure,the prosecution and the defense have changed the traditional adversarial relationship to the present consultative cooperation,and the corresponding defense model also presents new features,which will have a profound impact on China’s criminal justice system and criminal litigation structure.The establishment of a plea-based sentencing negotiation mechanism will not only achieve a reasonable allocation of resources in terms of both substantive leniency and procedural simplicity,but also improve the efficiency of the case through the active plea of guilty and punishment by the suspect and the defendant in the process of "streamlining",and will,with the collaboration of the public prosecution and law enforcement agencies,open up new ideas for the resolution of crime problems in the new situation in China.The new way of thinking and solving the crime problem will be opened up under the collaboration between the public prosecution and the law.The full implementation of the plea leniency system has brought about profound changes in the traditional tripartite pattern of prosecution,defense and trial in criminal litigation,which has shifted the focus of some plea cases from the trial stage to the pre-trial stage,and the prosecution stage led by the procuratorial authorities has become the key litigation stage for plea cases.In the processing of plea cases,the procuratorial authorities assume more important responsibilities in the initiation of procedures,plea negotiations,and sentencing recommendations,which is why the procuratorial authorities are gradually taking the lead in the plea leniency system.The formation and formulation of sentencing recommendations is an important support for the formation of the dominant position of the procuratorial organs,but does not mean that the procuratorial organs unilaterally dominate the formation and results of sentencing recommendations.In the suspect,the defendant litigation status brought about by the full exercise of their procedural rights and discretionary influence,the plea case sentencing recommendations should be based on equal consultation,is fully negotiated by the prosecution and the defense to form a "consensus".However,various problems have arisen in the sentencing negotiation process in judicial practice.The lack of experience of prosecutors in sentencing and the lack of unified sentencing guidelines have made the problems of "different punishment for the same crime","imbalance in sentencing" and "uneven sentencing" more prominent in the context of the plea and punishment leniency system.In the context of the plea-bargain system,some prosecutors are not even listening to the sentencing circumstances and sentencing opinions of the prosecuted person and his or her defender.In the face of the prosecuted person and their case information access,litigation status are extremely unequal,can not let the defense actively perform their duties,or even the duty lawyer as a "witness" to sign the certificate,the procuratorial organs for the victim’s "hearings" The emergence of such problems reflects the nature,connotation,actual operation,supervision mechanism and other aspects of China’s sentencing consultation mechanism there are many theoretical and institutional gaps,and thus restrict the further development of the plea leniency system.Therefore,it is necessary to actively identify and summarize the current problems in legislation and judicial practice,and to explore and improve the theory of sentencing negotiation as soon as possible with reference to the experience of relevant systems in foreign countries.Specifically,this paper is divided into four parts.In the first part,the basic concept of plea bargaining is defined,and the features and values of plea bargaining are discussed.In the second part,the current problems of the sentencing negotiation mechanism for plea cases are analyzed and discussed.The main focus is on the alienation of the dominant position of the procuratorate;the lack of protection of the rights of the prosecuted in the sentencing negotiation;the lack of a substantive role of the defense in the sentencing negotiation process;the lack of protection of the rights and interests of the victims;the lack of standardized procedural guidelines and the imperfect supervision procedures.In the third part,we analyze the successes and shortcomings of the "consultative justice" model in the United States and Germany from the perspective of comparative law,and summarize the aspects that can be applied to the sentencing consultation reform in China.In the fourth part,we propose multi-level and multi-dimensional suggestions for improving the sentencing negotiation mechanism in the plea-bargaining system from the perspectives of legislation and justice,respectively,according to the participating subjects in the sentencing negotiation and the standardization of negotiation procedures.