Research On The Standards For Protests In The Second Trial Of Cases Of Guilty Plea And Acceptance Of Punishmen

Revised in 2018,the Criminal Procedure Law of China established the System of Pleading Guilty and Accepting Punishments with Leniency.By diverting the complicated cases from simple cases,the judiciary authorities save the resources from simple cases and concentrate them on the handling of complex cases,which not only improves judicial efficiency,but also ensures the fairness and justice of the law.The leniency system based on admission of guilt and acceptance of punishment has turned the confrontational situation in the traditional criminal procedure to a nonconfrontational situation,in which the defendant confesses guilt and negotiates sentencing with the prosecution.Under the background of system reform of the specified number of judicial personnel and the work pressure due to more cases and fewer staff,on the one hand,the leniency system based on admission of guilt and acceptance of punishment realizes the litigation economy under the premise of ensuring the quality of the case,on the other hand,it also protects the defendant’s expected interests and enables them to close the lawsuit and obey the judgment,who will accept the education reform and reintegrate into the society.However,in reality,there are situations where the defendant appeals after pleading guilty and accepting punishment,and the court does not accept the prosecution’s sentencing recommendations.As the Criminal Procedure Law of China does not clearly stipulate the handling of these two situations,this has caused great distress to the judiciary authorities.Facing the phenomena that the defendant’s appeal after pleading guilty and punishing and the court’s refusal to accept sentencing recommendations,the prosecution in different regions of China also have large disagreement on these issues.In practice,they often exercise power of protest to against them.As an important power of the prosecution to exercise legal supervision functions,the power of protest should be applied with caution.Therefore,analyzing the legitimacy of protests,which are used by the prosecution to respond to appeals and restrict the judge’s discretion in the guilty plea cases,is a theoretical prerequisite for discussing other issues.Therefore,this article first analyzes the application of the power of second-instance protest in the guilty plea cases,and discusses the deep-seated reasons for the problem of second-instance protest.Then,by distinguishing the entity and procedural protest situations,and constructing the protest standard under the leniency system to regulate the exercise of the power to protest in the second instance.The details are as follows:The first part analyzes the status quo of second-instance protests in the guilty plea cases in China.This article selects the second-instance judgment documents of the three provinces and one city between March 1,2020 and March 1,2021 on China Judgments Online,and summarizes the main reasons for the prosecutors’ second-instance protests,including the reasons for the protests against the defendant’s appeals and the firstinstances that don’t go into effect.Then,these reasons will be classified according to substantive and procedural standards.Through summarizing,it is found that in judicial practice,the power of protest is used to respond to the defendant’s appeals,and the court’s refusal to accept sentencing recommendations.The second part,based on the phenomenon of second-instance protests by the prosecution which is summarized in previous article,it is concluded that the current power of second-instance protests has the problem of non-standard application.And the problem of the inconsistency in the application of the power of protest is embodied in three aspects: first,the power of protest has become a means of restricting the discretion of the judge;second,the initiation of a protest lacks a legitimate legal basis;third,the behavior of the protest substantially restricts the defendant Right of appeal.Aiming at the application of the power to protest in the second instance,this article will analyze its causes from three aspects: theory,legislation and system.The third part is to by analyzing the types of substantive and procedural protests that can be filed,we analyze specifically which problems in the trial need to be protested and which do not need to be protested,so as to build a specific standard for second instance protests.The fourth part proposes a number of supporting measures for the second instance protest standard from two aspects: improving the procedural mechanism before and after the trial and optimizing the internal supervision mechanism of the legal and prosecutorial organs,in order to assist the implementation of the protest standard and reduce the occurrence of unnecessary protests.