Study On The Issue Of Appeal And Punishment In Guilty Plea Cases

The follow-up appeal punishment,refers to according to the provisions of the law,the procuratorial organ should not protest,but based on the case of guilty plea,the defendant appeals,the procuratorial organ on the basis of the defendant’s appeal.The most typical feature of this kind of protest is that it is based on the appeal,which is regarded as the only reason for the protest.Because in accordance with the principle of the appeal is not another,only the defendant appeal by a party shall not be additional punishment,and the people’s procuratorate protest appeal of no additional punishment principle are not legally binding,can add to the defendant,so that the protest has the typical features of the follow-through,just correct the first trial referee this protest is not common sense of the protest,but in order to increase the defendant punishment,Therefore it is called "follow up type protest adds punishment".In practice,this kind of follow-up protest is an infringement of the defendant’s right of appeal,restricting the court’s jurisdiction,there are many practical harm,and the cause of these harm is also in many aspects,so it is necessary to study and solve this problem.First of all,There are two kinds of practice patterns in the case of guilty plea.Defense of rights protest sentence is the prosecution use protest right defense of the defendant’s right to appeal,the use of protest to avoid the defendant to borrow the principle of no additional punishment to get two opportunities for leniency,the court in the defendant’s appeal that no longer guilty plea on the basis of sentencing.The power restriction protest and sentence increase is the restriction of the procuratorial organ to the court’s jurisdiction,through the protest to open the second instance,break through the principle of no sentence increase on appeal,and realize the purpose of heavier punishment to the defendant with the help of the court’s sentence increase.Secondly,There are many practical harms in the case of pleading guilty.The appeal is not based on the wrong judgment of the first instance,and the judgment of additional punishment is not based on facts and evidence,which hinders the realization of the value of justice and order in criminal procedure.It is a violation of the principle of no additional punishment for appeal and the basic principle of penalty to consider the defendant to exercise the right of appeal as not to plead guilty.It defends the defendant’s right to appeal with improper protest,breaks through the principle of no additional punishment to the defendant,ignores the education and correction of the defendant in the criminal law,and hinders the realization of the error correction function of the second instance and the purpose of penalty prevention.Thirdly,There are many reasons for the occurrence of the follow-up protest of the case of guilty plea.Theoretically,there are two views on the issue of "support additional punishment" and "oppose additional punishment".Support the proposition of additional punishment,through "additional punishment" to maintain the supervision power of the procuratorial organ,to achieve judicial integrity.Against the proposition of additional punishment,with "no additional punishment" to limit the procuratorial organs’ arbitrary protest,and implement the implementation of the principle of appeal without additional punishment.In the legal system,the legislation about the follow-up protest and sentence addition is not perfect,and there are no restrictions on the start of the second trial procedure and the scope of the second trial.Finally,There are multiple measures to solve the problem of following up protest and sentence addition in the case of guilty plea.To clarify the relationship between the right of appeal and the right of protest in the case of guilty plea,make it clear that the right of appeal is not the legal reason of protest in the second instance,and reasonably limit the right of appeal of the defendant.The legal system of protest and trial of the second instance should be improved,the key review mode of the second instance should be constructed,the standards of protest of the procuratorial organs should be refined,and the docking of litigation procedures should be optimized.The realization of the right of protest is guaranteed from three aspects: strengthening the objective obligation of the prosecutor,regulating the discretion of the prosecution and restricting the follow-up protest of the procuratorial organ.