Study On The Initiation Of The Second Instance Procedure In The Case Of Pleading Guilty And Admitting Punishment

With the development of criminal justice in China in the direction of light punishment and the deepening of judicial system reform,the increasing number of minor criminal cases and the limited allocation of judicial resources make the pressure of "more cases than people" more and more obvious.In order to fully implement the criminal policy of combining leniency with severity,rationally allocate judicial resources,realize quick trial of simple cases and intensive trial of important cases,and further promote the reform of the judicial system centered on trial,China has made a series of beneficial explorations on the lenient system of pleading guilty and admitting punishment by setting up pilot projects to sum up experience,and formally wrote the lenient system of pleading guilty and admitting punishment into the Criminal Procedure Law in 2018.The application of the lenient system of confession and punishment has achieved remarkable results in encouraging the accused to repent,resolving contradictions and conflicts,maintaining social stability,saving judicial resources,and improving litigation efficiency.However,in judicial practice,there are still cases in which the case of confession and punishment has not achieved the system effect of serving the judgment and suing for interest in the first instance procedure,and the second instance procedure has been started through appeal and protest,resulting in the consumption of judicial resources again.Therefore,this thesis mainly aims at this situation,starting from why the second-instance procedure is started in the cases that have been confessed and punished,and how to reduce the unnecessary second-instance procedure that affects the litigation efficiency.By reading monographs and documents,combining with empirical case analysis and comparing with relevant legal systems and judicial practices abroad,this thesis conducts research.This thesis mainly expounds the research results through six parts.The first part is the introduction,which mainly introduces the background,purpose,significance,methods and research status at home and abroad.The second part is an empirical study on the initiation of the second trial procedure in cases of pleading guilty and admitting punishment.Through statistical analysis of selected cases,it provides empirical support for the follow-up research.The third part analyzes the necessity of starting the second-instance procedure in the case of pleading guilty and admitting punishment,and responds to the dispute about whether the second-instance procedure should be started in the case of pleading guilty and admitting punishment in theory and judicial practice from two aspects: right relief and trial supervision,system development and judicial status quo,so as to further clarify the protection of the right to protest.The fourth part is about the problems existing in the start-up of the second trial procedure of the case of pleading guilty and admitting punishment.From the perspective of the accused,it mainly includes the appeal for "staying in prison" because the sentencing does not meet expectations,and from the perspective of the procuratorate,it mainly includes the defensive protest filed because of the appeal and the restrictive protest filed because the sentencing proposal is not adopted.The fifth part is the analysis of the causes of the existing problems.Through research,it is found that the reasons leading to the problems mainly include the lack of standardization of system application;The appellant has the space to obtain the benefits of sentencing in the second instance;The place of execution was not considered during the negotiation;The appeal behavior is unregulated and the protest standard is not uniform;There are differences in the adoption of sentencing suggestions.The sixth part is divided into the existing problems and their causes,and puts forward the solutions.It mainly includes perfecting the lenient system of pleading guilty and punishing,and reducing the appeal rate from the root;Pre-trial meeting to review the cause of appeal,reduce unnecessary consumption of judicial resources;Improve the scope of negotiation on confession and punishment;Clearly define the protest situation,regulate improper protest,formulate unified sentencing rules,strengthen consultation in procuratorial work,and cooperate to ensure the efficient operation of the judiciary.By solving the problem,it is expected to reduce the unnecessary start-up of the second trial procedure in cases of guilty plea and punishment,so as to further play the institutional function of the lenient system of guilty plea and punishment and realize its institutional value.