On The “Protest Derive From Appeal” In The Cases Of Involving Admitting Guilt And Accepting Punishment By People’s Procuratorates

The system of admitting guilt and accepting punishment by people’s procuratorates is steadily advancing in judicial practice.The application of the system in practice has also been from administrative orders to conscious application effectively.The reform of the leading role of the procuratorate has been flourishing.However,when defendants appeal on the grounds that the sentence is excessive,whether the prosecutor against with protest,which is not only about the protection of defendants’ rights,but also the regulation of the authority of the prosecution.An sentence of “the people’s procuratorate shall file an appeal in accordance with the law” is firstly expressed in the article 39 of the Notice by the Supreme People’s Procuratorate of Issuing the Guiding Opinions on the Provision of Sentencing Recommendations for the Handling of Cases Involving Admitting Guilt and Accepting Punishment by People’s Procuratorates in December2021,which affirms the practice that in some areas the prosecutors resist prosecution due to the defendant’s appeal.Nervelessly,the jurisprudence and norms behind it are still worth exploring,that is,whether “the people’s procuratorate should file an appeal because of the appeal”.This paper intends to start from the different judgments on this issue practically,from the analysis of the reasons for supporting and not supporting the protest,to clarify the internal logic of the two views.From the Supreme People’s Procuratorate’s Guidance Case No.83 in December 2020,which did not achieve the expected and substantial effect,to the the Guiding Opinions in December 2021,it can be seen that the practice continues to catalyze “the people’s procuratorate should file an appeal because of the appeal”.Meanwhile,the theoretical debate on this is still not rest,about the conflict between taking advantage of the the principle of no additional sentence on appeal and increasing penalty of the procuratorial authorities,the questions about judicial authority and judicial integrity stimulated by the procuratorial authorities,and the value of the different tendencies.The issue of “the people’s procuratorate should file an appeal because of the appeal” reflects different tendencies towards values in the operation of the system.Secondly,it analyzes “the people’s procuratorate should file an appeal because of the appeal”from both the defendant and the prosecutor’s office,and at the same time,comparing the common law system on behalf of the United States and the civil law system on behalf of Germany,from the prosecutor’s system to the plea bargaining system,and then specifically to the post-trial remedies for the defendant and the functional power of the prosecutor,in order to better attack the jade with the stones from other mountains.Finally,the alternative solution of “the people’s procuratorate should file an appeal because of the appeal”is to balance the parties.The first is to control the source,that is,to analyze the reasons for the defendant’s appeal and the thoughts of the procuratorial authorities,from the duty lawyer to the plea agreement,from the right of appeal to the procuratorial function,from theory to practice,in order to gradually solve the dilemma of all parties.The second is to solve the post-incident resolution,put forward an innovative program "paper review of the reasons for appeal,procuratorial opinion" model,so as to deepen theoretical discussion vertically,solve practical problems horizontally,and improve the system of plea and punishment leniency comprehensively.