| The value of the sentencing consultation system includes improving the rationality of sentencing recommendations,strengthening the status of the prosecuted as the subject of litigation,and optimizing the allocation of judicial resources.At the same time,the sentencing consultation system also has institutional risks such as imbalance of power(interests)of the prosecution and defense of the trial,increased risk of unjust,false and wrong cases,and damage to the equality of application of law.From the perspective of the structure of criminal proceedings,the sentencing consultation system has problems such as insufficient procuratorial power restraint mechanism,the humanization of duty lawyers,and unclear judicial review authority.The specific manifestation of the inadequacy of the procuratorial power restraint mechanism is the alienation of the consultation process into repressive justice and the unclear effect of the consultation results on the procuratorial organs.The inadequacy of the procuratorial power restraint mechanism is caused by the imperfect consultation process and the lack of transparency in the consultation process.To this end,first,the sentencing consultation procedures should be improved and the procuratorial discretion should be standardized;The second is to establish a system of simultaneous audio and video recording of sentencing consultations to openly promote justice.The specific manifestation of the witness humanization of duty lawyers is the limited participation of duty lawyers and the limited participation effect of duty lawyers.The reasons for the personification of duty lawyer witnesses are that the status of the lawyer as the main body of negotiation has not been established,the duty lawyer has insufficient understanding of case information,and the duty lawyer has a heavy task and low returns.In this regard,first,the status of lawyers as the subject of consultation should be established;The second is to explore the discovery system to ensure that duty lawyers can fully understand the case information;The third is to improve the supporting safeguard measures for duty lawyers.The unclear authority of judicial review is a problem in the second stage of sentencing consultation,and how to balance the right of judicial review with the agreement of prosecution and defense is the proposition brought about by the application of consultative justice.The specific manifestation of the unclear authority of judicial review is that the extremely high rate of judges’ acceptance of sentencing recommendations and the simultaneous existence of power games by judicial prosecutors around sentencing recommendations.The reasons for the lack of clarity in the scope of judicial review are the unclear content of judicial review and the unclear boundary between consultation and agreement and judicial jurisdiction.To this end first,defendants should be given the right to object to sentencing.with sentencing objection as the focus of judicial review;Second,it should be made clear that the leadership of sentencing is in the hands of the court,and appropriate sentencing should be taken as the premise for judicial and prosecutorial interaction.After the implementation of the leniency system for pleas of guilt and punishment,under the institutional arrangement of efficiency orientation and simplification of trial procedures,the risk of infringement of the procedural rights of the prosecuted person increases.The core significance of sentencing consultation is to make up for the lack of legitimacy caused by the simplification of trial procedures. |
