| The process of negotiation refers to the dialogue and communication between the prosecutor and the defence lawyer on issues such as the sentencing of the person being prosecuted,and the prosecutor eventually proposes a mutually satisfactory sentencing opinion.As for the plea negotiation under the plea leniency system,there are two different views in the theoretical circles: one believes that the plea negotiation is the rightful meaning of the plea leniency system;the other believes that there is no plea negotiation under the plea leniency system.In order to maintain the legitimacy and legality of plea leniency,the negotiation factor should be addressed and the substantive participation of lawyers in plea leniency should be guaranteed.Under the plea leniency system,equal and adequate consultation between the prosecution and the defence has its unique value.Firstly,consultation can guarantee the voluntary nature of the accused’s plea and ensure the legitimacy of the plea;secondly,the full participation of the defence in the consultation can make the sentencing recommendations of the procuratorial authorities more precise;thirdly,the full consultation between the prosecution and the defence to reach an agreement is the key to the docking of the penalty pleaded by the accused and the penalty imposed by the court,which helps to put the "plea Thirdly,full agreement between the prosecution and the defence is the key to the dovetailing of the penalty pleaded by the person being prosecuted with the penalty imposed by the court,helping to put the "plea of guilty"into practice.The current level of consultation between the prosecution and the defence in plea cases in China is relatively low.The main manifestations are: firstly,the status of the two sides in the negotiation is not equal,the prosecutor dominates the whole process of negotiation,including the initiation of the negotiation procedure,the process of negotiation and the result of the negotiation,and the lawyers only put forward their opinions.Secondly,the prosecutor did not attach importance to the different opinions expressed by the defence lawyers,and the participation of the lawyers lacked substance;thirdly,the information between the two sides of the negotiation was asymmetrical,and it was difficult for the defence to negotiate with the prosecution on an equal footing.The reason why the negotiation between the prosecution and the defence in plea-bargained cases is only a formality is due to the following reasons: firstly,there is no special provision in the legislation for the negotiation between the prosecution and the defence,the substantive content of the negotiation between the prosecution and the defence is not clear,and there is no independent key negotiation procedure,which causes the negotiation to fall into disorder and makes it difficult to achieve negotiated procedural justice;secondly,China lacks the concept and tradition of negotiated justice.In criminal proceedings,both prosecutors and lawyers lack the awareness and enthusiasm to negotiate.In order to effectively implement the leniency system of plea and punishment,the change of substantive negotiation between the prosecution and the defence should be promoted.Firstly,the procedural provisions of negotiation between the prosecution and the defence should be increased in the legislation to clarify the contents and procedures of negotiation;secondly,the concept of judicial negotiation should guide the prosecutors and lawyers to change their concepts,actively promote and participate in the negotiation between the prosecution and the defence,and change the traditional way of prosecution and defence.Thirdly,the rights and obligations of the prosecution and the defence in the consultation should be clarified by emphasising the objective obligations of prosecutors,exploring the establishment of an objection mechanism and adding proposals from lawyers,so as to ensure that the consultation is carried out in a substantive manner. |
PDF Full Text Request