Study On The Issue Of Procedure For Guilty Pleas And Punishment Acceptance,Research On Aggravated Punishment In The Retrial

According to Item 1 of Article 45 of the Guiding Opinions on Guilty Pleas and Punishment Acceptance,which provides for the second instance of the expedited trial procedure,the defendant’s exercise of the right to appeal may lead to aggravated punishment in a retrial,which is suspected of violating the principle of "no aggravated punishment in an appeal".In the Duan Hong’an case on interference with public service,after the defendant appealed,the court of second instance ruled to remand the case for the retrial,and the court of retrial made a judgment retaining the original punishment but cancelling the suspension of sentence.The main reason for cancelling the suspension of sentence was that the court considered that the defendant Duan Hong’an "showed no repentance".From the perspective of the application of substantive law,the court of retrial held that Duan Hong’an surrendered himself and still met the condition of repentance for the suspension of sentence.The application conditions of surrender and suspension of sentence overlap to some extent,and the act of surrender can also be regarded as a form of repentance.There were also other circumstances of lighter sentencing in this case,which also reflected the defendant’s repentance,and the conclusion of cancelling the suspension of sentence in the judgment of retrial was not established.From the perspective of procedural law application,cancellation of the suspension of sentence in the judgment of retrial belongs to aggravated punishment,and this case failed to meet the procedural elements for aggravated punishment in the retrial as provided in Article 237 of the Criminal Procedure Law.In this case,the procuratorate did not protest,and did not file a supplementary prosecution for new corpus delicti after the case was remanded by the court of second instance;although the procuratorate changed the prosecution,this is not a condition for aggravated punishment in a retrial.The cancellation of the suspension of sentence in the judgment of retrial belongs to aggravated punishment.Only according to Item 1 of Article 45 of the Guiding Opinions on Guilty Pleas and Punishment Acceptance,the court of retrial ceased to apply probation to the defendant Duan Hong’an from the perspective of cancelling sentencing preferences,ignoring the existing limitations of the principle of "no aggravated punishment in an appeal" on aggravated punishment in a retrial.The court of retrial shall not mechanically apply the Guiding Opinions on Guilty Pleas and Punishment Acceptance.In an attempt to affirm the legitimacy of aggravated punishment only on the ground that the defendant appealed against his word,which is not conducive to protecting the litigation rights of the defendant.Returning to the law itself,the establishment of the principle of "no aggravated punishment in an appeal" is aimed at ensuring that the defendants can fully exercise their right to appeal.According to the Criminal Procedure Law of the People’s Republic of China,the defendants’ right to appeal is inalienable.Even for the defendants who plead guilty and accept punishment who make a repentant appeal,the people’s courts cannot abandon the application of the principle of "no aggravated punishment in an appeal".For a case with expedited procedures,the defendants’ filing an appeal on the grounds of unclear facts and insufficient evidence are the performance of the defendants’ exercise of the Right to Repentance.The court remanded the case for retrial in accordance with Item 1 of Article 45 of the Guiding Opinions on Guilty Pleas and Punishment Acceptance for the purpose of the application of procedure conversion mechanism;the court retried the case according to the ordinary procedure,and the case returned to the original point of confrontation between the prosecutor and the defense.However,from a systematic perspective,the provision "no longer being given a lenient punishment as per cases pleading guilty and accepting punishment" in Item 1 of Article 45 of the Guiding Opinions on Guilty Pleas and Punishment Acceptance is not a counterattack against the defendant’s estoppel and appeal,and the defendant’s right of appeal may not be restricted on the basis of such Article,but on the premise of adherence to the principle of no additional punishment imposed upon appeal,courts may not withdraw substantive preferences granted merely because defendants go back on their word.Therefore,Item 1 of Article 45 of the Guiding Opinions on Guilty Pleas and Punishment Acceptance is not an exceptional circumstance for the principle of no aggravation of penalty upon appeal as set out in Article 237 of the Criminal Procedure Law,and the application of the system of leniency for guilty pleas and punishment acceptance cannot avoid the prerequisite constraints of the principle of no aggravation of penalty upon appeal.In this regard,the obligation of public prosecution authorities to notify the consequences of the defendant’s reneging and appealing shall be strengthened.In terms of legal provisions,this paper attempts to seek the connection between the principle of no aggravation of penalty upon appeal and Item 1 of Article 45 of the Guiding Opinions on Guilty Pleas and Punishment Acceptance,in order to better promote the coordinated application of the two,and suggest that the provision of no aggravation of penalty upon appeal should be modified in the future,so as to absorb the situation of the defendant’s reneging and appealing in the second instance of the expedited procedure in the Guiding Opinions on Guilty Pleas and Punishment Acceptance,promote the effective application of the system of leniency for guilty pleas and punishment acceptance,and urge the defendant to appeal cautiously.