Based on the transaction system Chinese type debate

 

Luo Yulun

   Abstract: "get commutation" case once caused widespread public concern, people commonly known as "loss reduction" is in essence a kind of plea bargaining. Plea bargaining is a long-standing judicial system in countries of Anglo American law system, our country the first plea bargaining case2002Mudanjiang City railway court accepted. The case has sparked widespread controversy. Plea bargaining case again recently Dongguan City Court accepted triggered fierce debate media and legal circles, as a civil law China exactly need plea bargaining and can reference and transplantation of plea bargaining system, becomes the focus of discussion and controversy. The author intends the system foundation depends on the cause and America plea bargaining system were analyzed, to explore the establishment of China plea bargaining system problems.

    Keywords: Plea Bargaining   Necessity  Feasibility  The system design

 

    Guangdong Province Dongguan City Intermediate People's court for robbery principal to compensate the victim5Million and the lenient sentence sentence. "The case of loss reduction" once aroused widespread public concern, CCTV "views" column for the production of special programs to discuss the case. In fact, people commonly known as "loss reduction" is in essence a kind of plea bargaining. Plea bargaining is a long-standing judicial system in countries of Anglo American law system, is quite popular. Our case is the first plea bargaining2002Mudanjiang Railway Transportation Court concluded, the case has caused extensive debate. Plea bargaining case again recently Dongguan City Court accepted triggered fierce debate media and legal circles, as a civil law China exactly need plea bargaining and can reference and transplantation of plea bargaining system, becomes the focus of discussion and controversy.

A,     The objective basis of meaning and development of plea bargaining

(a), plea bargaining meaning

Plea bargaining is EnglishPlea BargainingThe Chinese translation, translation and plea bargaining. American "Black Law Dictionary" said: "plea bargaining is refers to the criminal defendant is a lesser charge or charges in one or several make a plea of guilty, in some concessions in exchange for prosecutors, usually receive a lighter sentence or cancel the other charge, between the prosecutor and the defendant after consultation and agreement". Leinster LOM with "America Law Dictionary" of plea bargaining explanation: "in criminal cases, the accused to negotiate mutually acceptable agreement procedure through his or her attorney and the prosecutor". Today the plea bargaining is still no uniform definition of authority, but in essence, plea bargaining is both sides through mutually beneficial transactions the sanctions on its substantive rights and procedural rights. The plea agreement, the judge will usually give substantive review of the case, only to confirm the plea agreement content in form, unless the court considers the content of the agreement in violation of the principles of justice and fair, will refuse to accept the transaction results. In other words, in the case of plea bargaining judge will no longer call a jury trial, also do not organize hearings and debates and directly make a decision. Plea bargaining is accused of Trading (Charge BargainingAnd the transaction)(Sentence Bargaining)Two. Is that public prosecutor accused of trading can be a felony misdemeanor charges according to, part or prosecute only several charges and revocation of the other part of charges for the defendant's plea of guilty; punishment trading refers to the prosecutor can suggest the judge sentenced to lighter penalty cost to the defendant's plea of guilty. Guilty plea(guilty plea)A plea of guilty to the defendants from prosecutors to reduce charges or commutation of punishment recommendation to the judge's commitment after. A plea of guilty plea bargaining is very important link in the guilty plea is, the defendant must pay the "price", the defendant looked through it in exchange for a lighter sentence.

(two), the objective basis of Trade Development

Early in the19Century80In the early 1980s, some criminal cases America Connecticut has appeared on the plea bargaining, but early plea bargaining is a "secret" in USA. USA Federal Supreme Court in1970Years inBrady V.U.S(Brady V. United States, 379, U.S.742752-53 1970) decision formally recognized the legitimacy of plea bargaining.1USA1974Implementation of the "revised federal rules of criminal procedure" plea bargaining to general principles and published, accept, reject and so on a series of procedures were clearly defined in the form of legislation, which established the legal position of plea bargaining. At present, the plea bargaining in the American criminal proceedings in the proportion has exceeded the court convicted. According to statistics, American about90%Criminal cases by plea bargaining mode processing. Plea bargaining is in America generated and got rapid development, has its profound historical background, are inseparable and American their humanistic foundation, legal tradition and legal philosophy.

1At the contradiction between the large backlog of criminal cases and limited judicial resources of forcing American prosecutors to seek a more efficient, effective way of closing, high efficiency characteristics of the plea bargaining itself is just fit the USA prosecutors to pursue judicial efficiency.19At the end of the century, with the rapid development of USA capitalist economy, social conflicts intensified, the number of criminal cases the amazing growth, while the old judicial system in the face of the new situation difficult to cope with. Great contradiction between the ever-growing number of criminal cases and inefficient and complex criminal trial procedure. Worsening security situation drew widespread criticism of the people, for improvement in security environment has been rising. In order to respond to the aspirations of the people and to ensure the normal operation of the criminal justice system, prosecutors American some big city also have outside the formal criminal trial procedure to find a relatively fast way of closing, the plea bargaining system is born in such a historical background. Due to the plea bargaining can effectively enhance the lawsuit efficiency and save the cost of litigation, it is American most of the states. As the former American Supreme Court Chief Justice Warren Berg points out: "even if the application of plea bargaining in the proportion from the current90%Reduced to80%For a formal trial, the need of human and material resources, the resources will be doubled." "plea bargaining with low cost, easy proof rules to solve the problems of time, cost, assume the vast majority of cases, successfully achieved the procedural diversion, reduce a formal trial."②

2The Americans pursued the litigation idea, to lay a solid foundation for the development of the ideological foundation of plea bargaining. The litigation idea that criminal lawsuit and civil lawsuit no substantial difference, in criminal proceedings can also implement the principle of disposition, the parties may dispose of litigation request. The parties stressed that the party is a subject of the proceedings, the defendant is a party, the prosecuting attorney represents the interests of the state and society is the other party. Although the parties full of confrontation, but the criminal procedure is as a process of resolving disputes between the two sides, the litigation status of both parties are equal, the personality is equal. Both parties can dispose of their litigation rights, the prosecution for the revocation of prosecution, non prosecution, effect of the end procedure in law, but in essence is still the rights of parties. USA criminal action to implement the "crime of recognition program ("Arraignment), as long as the defendant pleaded guilty in the procedure, that is no longer the case fact evidence investigation, directly into the sentencing procedure, which is a manifestation of the principle of disposition. The parties emphasized that both parties can independent action of their substantive rights and procedural rights, which provides the possibility for plea bargaining. The litigation idea also asked the judge to remain neutral, otherwise it will undermine justice, neutral image. "If the judge in between prosecutor and defendant consultation, will give the defendant made improper pressure and influence, so that the defendant guilty plea to become" non rational and non voluntary ", thus losing a plea of guilty effective essential conditions".③The litigation idea is reflected in the contract freedom in the judicial field. The contract freedom in America win support among the people, ingrained, and in all aspects of social life laid a deep imprint. The idea of the freedom of contract in USA abused severely social rights to deal with privacy and civil, and formed a unique Party in litigation. A large extent the contract freedom is the human basis of plea bargaining system. Contract freedom thought, through rational dialogue and effective information exchange between subjects of equal, voluntary consensus reality, in order to achieve their own interests demand.

3USA prosecutors has broad discretion, for the development of Plea Bargaining from the system provides convenient conditions. American is public prosecution monopoly state, prosecutors have discretion almost without limit in deciding whether to prosecute, say from this meaning, prosecutors have discretion in the case of the solution, he can sue, also has the right not to prosecute or degrades the prosecution or revocation proceedings. USA prosecutors has broad discretion, which also has the defendants plea bargaining capital. USA public procurators shall enjoy procuratorial organization wide discretion of loosely connected. America procuratorial system characterized with "three track, independent of each other.". The so-called dual refers to the function America procuratorial as trial functions as the federal and state level two of each exercise, the two parallel, do not interfere with each other; the so-called "three level", refers to the USA procuratorial institutions established in the federal, state and city town three administrative levels. Moreover, prosecutors American regardless of the level and size, are independent of each other. In other words, there is no subordinate relationship between federal, state and city prosecutors, even without supervision and mentoring relationship.④USA prosecutors belongs to administrative sequence, and is produced by the voters elected. They have to prosecute cases of successful rate, have a direct influence on the promotion of their job. When they believe that their mastery of the evidence is not enough to convince a jury, in order to improve the conviction rate, they have enough motivation to seek a plea agreement with the defense. And the victim in the criminal procedure act only as a role of witness, the plea deal basically no influence.

4American pragmatism, pragmatism is the philosophical foundation of plea bargaining. American is a land of immigrants, its history is not long. They measure of good and bad things not to history and tradition as the standard, but whether it is useful as a standard. In the judicial sphere reflected the same pragmatism values. In the judicial practice America due to the existence of the jury system, trial results have great uncertainty to the parties concerned. Because the members of the jury in Anglo American countries by the layman, the layman in general due to lack of legal rationality and too dependent on their social experience and intuition to judge, affect their judgment is usually controlled defendant court skills to a great extent, so that the trial results with great unpredictability. As America famous "Simpson case", the prosecution made full preparations, only because of flawed a evidence by the defence lawyers seize, eventually lead to suffer a big. "Therefore, the defendant, unless the defendant absolutely sure they will be acquitted, otherwise the general psychological draw on the advantages and avoid disadvantages inevitably predisposes him and accused Fang Dacheng of the plea agreement; for prosecutors, because USA law proved strictly requirements on indictment, often leads to the very easy to escape the legal sanction, USA in criminal proceedings not guilty verdict up30%, is a strong proof. Therefore, as a prosecutor of one of the parties, unless there is absolute certainty that his allegations are fully supported, otherwise also very happy and the defendant reached a settlement out of court." 5

USA law, once the jury found the defendant not guilty, the prosecution has no right to appeal. If the prosecutor cannot convince the jury of the defendant is guilty, the jury will award the defendant not guilty, this means that the prosecution efforts had all come to nothing. Plea bargaining in most of the time is insufficient evidence that prosecutors, make the defendant may be acquitted case. Although plea bargaining may make the defendant punishment than should be the penalty, but rather than by the jury declared not guilty. In the absence of the circumstances to obtain "half a loaf is better than no good", it is the pragmatism values in the judicial field performance. The defendant, the plea bargaining can get a lighter penalty, in essence it is a pragmatic choice.

5USA. Defense system developed and perfect evidence showing system and the system of plea bargaining

Be bound together in a common cause of development. Defense system developed to provide comprehensive legal service for the defendant, the defendant with the law of the right of silence, which greatly enhanced the defendant's defense force. The defendant is no longer the suppression of the object, but become the subject of litigation in the. Action mechanism of perfect the defendant to obtain more justice in plea bargaining is possible. And a perfect pretrial evidence display system further so that both sides in the transaction to fully evaluate their negotiating position, do know the score. If not the defendant system, based on the psychological luck may make the plea bargaining in vain.

The plea bargaining system is in America get both praise and blame, there has been great controversy in theory and practice. Supporters argue that it can improve the judicial efficiency of plea bargaining, reducing the judicial cost, enhancing the predictability of decision results. Opponents say the system deviates from the basic principle of the presumption of innocence, from criminal pursuit of substantive justice, at the expense of justice for the cost of transaction, with the system of plea bargaining process does not depend on the facts and the law in criminal cases, but depends on the both parties means of negotiations and the level of skills, this a large degree of harm to the seriousness of the law. Plea bargaining is possible based on the consideration of some disadvantages, the state American attorney announced a ban of plea bargaining. Despite the judicial practice of plea bargaining in America in controversial, but in fact it has become a basic security today America criminal justice system is able to run normally, as some scholars said, there is no plea bargaining, USA criminal justice system will face the danger of collapse.

Two, the plea bargaining in our practice and disputes

   (A),Try to plea bargaining in the judicial practice in our country

1Mudanjiang plea bargaining case.2002Years 4On 11DayHeilongjiang Province, Mudanjiang Railway Transportation Court Chinese first plea bargaining cases. The roughly after the defendant mengmou because: one day and others dispute, then call on some friends in the fight, the victim to cause severe injury. After the Meng Mou is seized, the fight in the friends have to escape. In this case, the prosecution organ thoughtMore melee results. Because of several accomplices escaped serious injury, not sure what caused the pursuit, and the need to spend a lot of manpower, material resources. In the court's suggestion, both sides reached a plea agreement: one take the material loss, defense lawyers give up facts unclear, insufficient evidence of the defense point of view; the prosecution suggested the court to the defendant on probation lighter punishment. The court trial think plea agreement between the parties is consensual, content validity, the court sentencing the defendant has committed the crime of intentional injury, sentenced to three years in prison, three years probation. This case is concluded, the local people's response, the majority of the trial results show the full affirmation, has achieved good social effect.⑥

2Plea bargaining case, Dongguan.2005Years11Month1On the evening of9When the left and right sides, Wang Mou of the accused person, Lai x, Zhou a robbery and cause the victim Cai Mou death. Criminal prosecution in the prosecution organ at the same time, the families of the victims and to initiate criminal incidental civil action. Because this case occurred, the victim's family has been in the extreme embarrassment situation, Cai's daughter is therefore facing. That in this case, the Dongguan court judge has organized a party to the case for mediation. Wang Mou of the accused person's family agreed to compensate the plaintiff5Million yuan, the plaintiff is satisfied with the result. The defendant also said to repent thoroughly of one's misdeeds. Finally, the judge according to the true meaning of both the expression, and in accordance with the law, on a lighter punishment Wang Mou of the accused person to a certain extent, at the first trial of the death sentence with a reprieve. The Dongguan intermediate court Vice President Chen believes that, in accordance with the law, the defendant can take steps to recover the loss, the behavior of social harmfulness to minimize. This approach can be according to the commutation of the plot. Chen also said, not all criminal cases can take this approach. For the social impact of bad cases, even if the defendant lose money, also cannot commutation. Can be used "loss reduction", mostly non intentional crime. ⑦

(two) the plea bargaining disputes

Our two cases of plea bargaining case reported by the media, has caused heated discussions of the legal profession. All of Chinese at this stage whether can the application of plea bargaining Each airs his own views., "said that" support "negative and" could not agree, Different people, different views. "Support" think, plea bargaining has three main advantages: first, greatly improving the judicial efficiency, saving judicial resources, highlight the efficiency of both the social justice. Second, give the defendant own disciplinary powers, reflected on the defendant rights respected and protected, conforms to the reform direction of judicial reform, people-oriented, in line with the development trend of judicial reform. Third, plea bargaining can improve both sides enthusiasm for the handling of the case, to reducing the judicial cost, simplifying the judicial procedures, practical significance of improving pure dictatorship and the dictatorship of the litigation idea of Jun Youji strong benefit of litigation and abolishing the traditional criminal theory.       

"Negative" think, our country at present for the introduction of plea bargaining system, sums up the reasons are as follows: 1. Plea bargaining with our existing cultural values do not accommodate; the contrary to our existing legal system of plea bargaining; plea bargaining does not conform to the principle of equality of the sentencing; plea bargaining harm judicial justice;5.Plea bargaining will aggravate judicial corruption in trading power for money. "Negative" think that China criminal trial results far from great uncertainty as American that makes a plea of guilty, the defendant also benefit is very limited, so both sides are lack of enthusiasm in the plea bargaining.

There is no denying the fact that the "negative" is not without reason. But the argument basis is still relatively weak, inspection without facts. In the traditional civil law countries such as the process of introduction of plea bargaining system in Germany, Italy, Russia and other countries, we can find, even though these countries are not the same, but these countries in the introduction of the system at the beginning, also is Public opinions are divergent., the opposition and the "negative" is very similar. But the system still in the raise a Babel of criticism of the opposition is deeply rooted in their own land and grow sturdily. The traditional civil law countries and transplantation of plea bargaining system experience shows that, the system of plea bargaining as the world legal culture results, the technology of component is not divided the law and borders. China's total of two cases of plea bargaining cases, achieved good social effect and legal effect. Our legal practice of plea bargaining also prove our reference and transplantation of plea bargaining system does not exist "The climate does not suit one." problem.

The necessity to establish the plea bargaining three, China

(a), needs to solve the case of the increasing

China is a traditional civil law countries and Anglo American law system, American on the judicial system is very different. There are similar but the judicial current situation of our country and USA was about the historical background of plea bargaining, criminal cases continue to pile up the sharp contradiction between the form and the limited judicial resources also appeared at the present stage of our country's judicial field. In recent years, our country's criminal cases rate rising, the judicial organs accumulated cases is increasing. The Supreme People's Procuratorate, the Supreme People's court in the first session of the Tenth National People's Congress report,1998Years to2002Years, the procuratorial organs approved the arrest of a criminal suspect3601357People, than in the previous five years (mean1993Years1998Years of rising)24.5%Prosecution3666142People, up more than five years ago30.6%,. The courts of first instance criminal cases283Million, up more than five years ago16%Criminal sentenced322Million, up more than five years ago18%. Because our country is in economic transition period, in the fields of economy, politics, culture, education has undergone profound changes, the legal system is not perfect, population flow, polarization between the rich and the poor, the divorce rate and the unemployment rate rose by a variety of factors there are a lot of crime. Can be expected in the future for a long period of time, the criminal cases rate will remain at a high level.

With the development of criminal cases rate increasing, the judicial organs to deal with the increasing number of criminal cases. Over the years the judiciary has been in the "overload" operation, almost unbearable degree. Faced with such a situation, choose a kind of quick and convenient judicial procedure has become the needs of reality.

(two), improve efficiency, save litigation costs

Our input to the resource is limited and relatively stable. Although in recent years the central government has increased the judicial organ support, but the funds shortage situation has not improved. This can be from a lot of judicial office conditions, reflected travel long cannot submit an expense account, police in handling. By economic conditions, in a certain period of time, China can not improve the criminal resources. Because the criminal cost is a component part of the national system cost, if the increase of criminal resources, will inevitably squeeze other social welfare and public construction spending, affect the overall macroeconomic development.

In the administration of justice under the conditions of limited resources, save the cost of litigation, improve judicial efficiency is the urgent problem of judicial reform. Outline for the reform of the Supreme People's court to put forward the pursuit of justice and efficiency as the target of judicial reform. On the premise of judicial justice, judicial efficiency is a pressing matter of the moment to highlight the judicial reform.1996Revised "Criminal Procedure Law" established a simple procedure, because of the scope of application of the program is narrow, so the full operation of the space is restricted.2003Years since the implementation of the summary trial of general procedure measures, establish the summary procedure and summary trial of general procedure measures, to a certain extent, improve judicial efficiency, but they also cannot alleviate the increasingly heavy pressure on the trial fundamentally, so the introduction of plea bargaining system has become to improve judicial efficiency, saving the lawsuit cost alternatives.

(three), cash "frankly leniency" criminal policy, to maintaining the integrity of the government

"Frankly leniency, resist strict" as a criminal justice policy in our country, to judge from the investigation in the criminal procedure, the investigators, inspectors and the judges will inform the suspect, the defendant of this policy, but the policy in the judicial practice and not to obtain the very good implementation. The policy often become investigators access to the suspect, the defendant's confession, criminal suspects, defendants "Frank" no policy cash, the suspect, the defendant on government credit doubt. In many criminal suspects, defendants eyes "frankly leniency, resist strict policy" is interpreted as "frankly leniency, sitting in prison, who resist, home to have the Spring Festival". This is the expected at the beginning of the policy makers.

See "frankly leniency, resist strict" misunderstood the reason is the lack of credibility caused by individual investigators from the surface. Look from deep administrative levels is due to the lack of corresponding measures to restrict the handling a case personnel. And the introduction of plea bargaining system can effectively make up for the defect of this policy, the investigators will promise to put it down in black and white to write in the plea agreement, legally binding on prosecution, "frankly leniency" criminal justice policy and law. The introduction of the system will help to protect the government's credibility and authority, be helpful for arousing the enthusiasm of criminal suspects and defendants, actively cooperate with judicial authorities.

(four), comply with the need of fast processing of criminal suspects and defendants, the international trend

The right of personal liberty is a basic right of citizens is the most important, the suspect, the defendant was forced to take measures after the loss of personal freedom, in jail awaiting trial for them is a heavy mental suffering, as soon as possible the law case is their common expectation.

To protect the suspect, the defendant's basic procedural rights,1976Years of the entry into force of the "International Covenant on Civil and political rights" Ninth paragraph third: "anyone arrested or detained on a criminal charge person, should be promptly brought before a judge or other exercise of judicial rights officer authorized by law, and shall be entitled to trial within a reasonable time or release." In the Convention under the guidance and influence, fast processing of criminal suspects and defendants, has become an international trend. Now many countries have the corresponding world legal measures to protect the suspect, the defendant has the right to a speedy trial, such as the use of plea bargaining system in England, the country such as Italy, American to implement the spirit of the convention. In our country1998Years10Month5Japan signed the Convention, which means that the rapid processing of the suspect, the defendant has become China's judicial organs must fulfill its international obligations. So the introduction of plea bargaining system may be an effective option for our country judicial organ to fulfill its international obligations.

Four, establishes the feasibility of plea bargaining in China

(A)The defense lawyer system, system has laid a foundation for the establishment of plea bargaining system

1996Criminal procedure, enhances the prosecution and the defense against the color, show that the criminal trial model in our country by strong inquisitorial system transformation principle to the authority and the combination of. The criminal procedure law article96Article lawyers involved in criminal proceedings to the early stages of the investigation, this provides a starting point for the establishment of good operation of plea bargaining system. The suspect, the defendant because of the lack of the necessary law and evidence of knowledge, without the help and guidance of lawyers, in plea bargaining may by the blind do not know, after all they are legal experts. The plea bargaining of both sides in the case of information asymmetry very, lawyers involved should become the inevitable choice of the defendant, or plea bargaining has lost its existence premise. Can be said to lawyer's participation is the cornerstone of plea bargaining. The relevant provisions of the criminal procedure law on lawyers is undoubtedly laid the initial conditions for the establishment of plea bargaining system.

The Chinese government has always attached great importance to the construction of law system, in addition to the lawyer law of criminal procedure law, and give the relevant rights of lawyers, the Supreme People's court, the Supreme People's Procuratorate and other six departments "on the implementation of the criminal procedure law in the provisions of a number of issues" and the Supreme People's Procuratorate '' about people's Procuratorate security of lawyers in criminal proceedings practice in accordance with the law regulations on Lawyers' 'are suspect, the defendant made clear. Although the right to meet with lawyers in normal practice by public security organs specific departments to develop a "local policies" many interference, but in the legal level can be said to the lawyer to exercise its rights done rule-based.

The United Nations' 'basic principles on the role of lawyers'' section7Stipulates that "governments shall ensure that, all people were arrested or detained, whether or not subject to criminal charges, shall have prompt access to a lawyer, in any case not later than from the time of arrest or detention48Hours." China is a signatory of the basic principle, the basic principle of fulfilling obligations. With the deepening of China's judicial reform, I believe that China's system of defense lawyers will be further developed and perfected.

(two), practice similar plea bargaining practices accumulate the experience for the establishment of plea bargaining system

In judicial practice, the prosecution often because of evidence of the difficulties, under the helpless and the criminal suspect, the defendant for plea bargaining (despite the judicial practice does not use the word). Prosecutors in investigating crimes especially this situation often occurs in the investigation in bribery case. Because of bribery, bribery, often in the two "one on one" between the prosecution evidence, extremely difficult, if not enough evidence, corruption and taking bribes income only as a misdemeanor "the crime of huge unidentified property". Self "as the briber for", refused to accept bribe fact, the prosecution and the absence of sufficient evidence, is unable to restrain by law. In this case, in order to get the briber's cooperation, the prosecution had to give up their criminal responsibilities shall be investigated for the conditions for briber cooperation. A typical case is Chongqing Qijiang "Hongqiao" case, the briber a fee to testify in court, the case Lin Shiyuan prime culprit was sentenced to death, a fee of bribery serious but not pursued any criminal responsibility. The case by the media exposure, Chongqing prosecutors questioned the practice of the legal profession. Because according to the criminal procedure law article15The provisions of article, only minor, little harm, is not considered a crime and other six kinds of circumstances can not be investigated for criminal responsibility, a fee for apparently not in six cases of. From a legal point of view, Chongqing procuratorial organs practice is "rules" too. Starting from the fight against nature than bribery crime more serious bribery, the procuratorial organs of Chongqing is made in the reality needs of conflict and legal choice, it has a practical rationality.

In the judicial practice, a similar plea bargaining is also widely exists in the common crime (such as drug trafficking, smuggling, the crime of underworld organization etc.). To effectively combat the principal, the prosecution are often implemented plea bargaining to the accomplice, accomplice under duress, asking them to actively report and expose the principal, as a condition of the deal was to give them some "sentence discount", such as not to prosecute, a lighter or mitigated punishment. Despite the similar practice of plea bargaining in various forms, This is not the only one., some appear in a legal form, some appear to "illegal" appearance, but also for the establishment of plea bargaining system has accumulated a lot of valuable experience.

(three), similar provisions of plea bargaining policy and law provides the legal basis for the establishment of plea bargaining system.

In the judicial practice of "Leniency to those who confess, resist strict" criminal policy is a kind of plea bargaining. The so-called "honest" is the requirement of criminal suspects, defendants are guilty confession, and then to "the defendant pleaded guilty to a better attitude" name, suggested the judge to be in sentencing on a lighter punishment. Although the proposal in the law to judge is not binding, but usually the judge will be adopted on the proposal, so that the suspect, the defendant to receive a lighter punishment to a certain extent. "Exchange of leniency to those who confess" essence is attitude toward admission of guilt and sentencing, characteristics which complies with the plea bargaining system. But in practice due to integrity problems the individual investigators, led the local plea bargaining not to obtain the very good implementation.

In the process of judicial reform, some provinces and cities have introduced a similar plea bargaining local policies, such as Sichuan Province "surrender to". The province in the fight against corruption, bribery and other crimes on the run in the special action, specifically formulated for lenient surrender personnel measures: where corruption, bribery in5Million yuan, the criminal suspect if we can take the initiative to surrender, return all the stolen money, and the institutions and state did not cause significant loss, and can not sue, not the principle of criminal penalty, no criminal responsibility. If say "frankly leniency, resist strict" is a macro criminal justice policy, then the Sichuan Province "surrender" is a very strong practical micro criminal justice policy. But this "surrender" as a breakthrough in criminal procedure code not to prosecute the relevant provisions of the "Regulations".

In addition to the "Leniency to those who confess, resist strict" criminal policy, direct provisions of our confession. The suspect, the defendant can obtain the discount is the criminal law article67Provisions "after crime automatic surrenders, the confession of his crime, is surrendered. Criminals surrender may be given a lighter or mitigated punishment. Among them, the lesser crime, may be exempted from punishment." "On the application of ordinary procedure" several opinions defendant confession cases "(Trial)" the provisions of article ninth "people's Court on the defendant voluntarily pleaded guilty, as appropriate, be given a lighter punishment." "Several opinions" on the application of summary procedure of public prosecution cases also stipulates that the defendant of voluntary confession, can be punished more leniently. Pleaded guilty attitude can exchange and sentencing, actively cooperate with the prosecution behavior can also exchange and sentencing, such as criminal law article68Article on "meritorious service" Regulations "criminals expose others to crime, verified, or provide important clues, and the cracking of other cases meritorious performance, may be given a lighter or mitigated punishment; there are significant meritorious performance, can be reduced or exempted from punishment. Crime after the surrender and major meritorious services, shall be reduced or exempted from punishment." The above provisions clearly a guilty plea of repentance and the guilty plea and the "meritorious service" behavior can be "lighter, mitigated, or even cancel" sentencing discounts, these provisions and the plea bargaining system has different approaches but equally satisfactory results and wonderful.

(four), international judicial cooperation helps people change the concept, to further expand the mass basis to accept the plea bargaining system

Since joining the WTO, China and the international economic exchanges have become increasingly frequent, international judicial cooperation has increased. In recent years, the greatest impact to the number of original China bank Kaiping branch of the bank, "the Kaiping case" principal of Yu Zhendong was escorted home court case. Yu Zhendong became a self signed cooperative agreement between China and the United States criminal justice since the first cases, America plea bargaining procedure after being sent to Chinese major economic suspect. According to the relevant provisions of the criminal law of our country, in the face of involving up to4.82Billion, Yu Zhendong jailed for12Years is obviously "sentences". ⑨ but this "sets" is based on Chinese and American judicial cooperation on the promise, is Chinese judicial fulfillment in the direction of the United states. In addition to China's largest smuggling case expedite the repatriation of Xiamen shocked the world "Yuanhua" principals Lai Changxing pace, the Chinese government has repeatedly to the Canadian government commitment, not Lai Changxing was sentenced to death.

Along with the international judicial cooperation, our people may bring "sets" the acceptance of increasingly high on the international judicial cooperation, after all, we come to realize the criminal suspect, defendant once across the border, is not a country's judicial system can solve, but need the international judicial cooperation. "Back to get a lenient sentence is better than not back" has become the consensus of the majority of people. The international judicial cooperation to gradually change people's ideas, which provides certain theoretical basis for the establishment of China the plea bargaining system.

Through international judicial cooperation, can not only broaden the vision of public law, also can let more people understand the proper role of plea bargaining system in the world in the judicial practice and the existence, in thought gradually give up the idea of justice absolute tradition, set up the relative concept of justice and judicial efficiency. In short, the international judicial cooperation widely helps people understand the plea bargaining system and enhance the acceptability of the system, for our country to establish the plea bargaining system to lay the basis for some people.

Design of five, Chinese plea bargaining system

(a), China plea bargaining should adhere to the principle of

To establish China plea bargaining system in China, the lack of judicial resources in speaking, its positive significance is self-evident. To establish Chinese the plea bargaining system should follow the following principles:

1The principle of voluntary and informed. Plea bargaining is based on respect for the suspect, the defendant autonomy, so both sides reached a plea agreement, must be entirely voluntary, any party shall not force the other side. Informed that the suspect, the defendant fully understand the legal consequences of a guilty plea. The guilty plea is based on rational and wise.

2Defense counsel in principle. As mentioned before, the suspect, the defendant because of the lack of law and evidence of knowledge, is at a disadvantage in plea bargaining, so it can get help from a lawyer is very important. To be fair, protect the suspect, the defendant's guilty plea of voluntary and appropriateness, lawyer's participation is a must. For without the economic ability to hire a lawyer of criminal suspects, defendants, countries should be free to appoint counsel.

3The form of review and substantive review. According to the principle of combining. In America plea agreement, the judge does not make a substantive examination, only to review the agreement in the form of content. And our laws, all the evidence shall be verified by the court, can be taken as a basis. In order to conflict with the existing laws, the court deals with the plea agreement of two aspects of form and physical examination.

4The punishment of crime and protection of human rights. The principle of combining. The feudal our two thousand years of history, the formation of centralized monarchy "heavy power, light right" right standard idea ingrained, has affected the traditional doctrine of severe punishment, leading to heavy punishment still exists "in today's criminal lawsuit, inclined light protection". The damage is often in the judicial practice or in disguised form deprivation of the crime suspect, accused person's legitimate rights and interests. Establishment of plea bargaining system should take the punishment of crime and the safeguard human rights together, so that the organic unity, mutual non biased.

(two), plea bargaining range

Some scholars have suggested that the scope of application of the system of plea bargaining as may be sentenced to10Years in prison, detention, control, single penalty cases, some scholars have suggested that the scope of the system of plea bargaining as may be sentenced to5Years in prison, detention, control, single penalty cases. The author thinks, applicable range is relatively wide, although can greatly improve judicial efficiency, save more costs, but the traditional lawsuit idea impact, in judicial practice is not always feasible. And in practice if we impose a no accepted legal system, although this method has the advantages of this or that, but the law is "evil law" too. Combining with the judicial status of our country, the author think is appropriate in the plea bargaining system as the crime is not too serious, subjective malignant small misdemeanor cases, the scope of application may be sentenced to3Years in prison, detention, control, single penalty cases. Connected so that a can and the simple procedure, avoid "be injured in the sinews or bones" amendments to the current criminal procedure law, and the public to accept degree is high, and the present situation in our country to the prosecutor's discretionary power relatively small coincide. Of course, with the deepening of the judicial reform, the system of plea bargaining in judicial practice experience accumulated and the relevant supporting system is perfect with each passing day, in all aspects of the conditions are ripe, we can expand the scope of application of plea bargaining. Some scholars believe that the possible scope for the design of plea bargaining system and the simple procedure have overlappings too, actually otherwise. Summary of current is only applicable to the facts are clear, sufficient evidence of the case, but the plea bargaining system is applicable to the evidence is not sufficient in the case, the two are not overlap.

(three), the applicable conditions of plea bargaining

The author thinks that the application of plea bargaining cases should be limited to a certain evidence but less full of cases, there is ample evidence of the case shall not apply plea bargaining. Some scholars believe that in addition to the above, the application of plea bargaining should also be in the victim (such as a victim's words) material loss, made the victim's consent to carry out. The reason is not built like USA that victim national compensation system of our country, right to compensate the victims have not been of plea bargaining is satisfied in the case of the victim is not fair. "I beg to differ, the long-term litigation practice, deeply understand that the implementation of crime suspects, defendants, their economic ability are weak, there is no corresponding compensation capability. Numerous court cases in the judicial practice shows that the victim compensation for a few. If we in the design of the system to compensate the victim's damage, the victim's consent as a prerequisite for the application of plea bargaining, which is tantamount to in a cocoon around oneself, the efficiency will be greatly reduced, contrary to our original intention of establishing the system of plea bargaining. Because of the widespread homomorphism revenge, have a strong desire to punish the criminal suspect, defendant, under normal circumstances most victims will refuse to both sides of the plea bargaining. And if the plea bargaining system operation depends on the will of the individual (the victim's consent), is personal will lead you by the nose, this itself shows that the system is a congenital defect in design.

To balance the interests of the victim, the prosecution can be made in the application of plea bargaining decision, fully listen to the opinions of the victim. The idea for the prosecution to decide whether to start the procedure of plea bargaining is an important reference factors. In addition to compensation for the victims of the material loss and no compensation for the victim's loss of material of the suspect, the defendant should be distinguished in the plea bargaining and punishment. "Regulations" provisions of article fourth of the criminal supplementary civil action range: "the defendant compensation for material losses of victims, the people's court may be considered as the circumstances of sentencing." On this point in the plea bargaining before the prosecution shall be obliged to inform the suspect, the defendant, to stimulate a payment ability of criminal suspects, defendants and their families compensation for the initiative enthusiasm. Under the same conditions, no compensation for material losses of victims of criminal suspects, defendants in plea bargaining sentencing to have for the suspect, the defendant, the compensation of the victims have not been to a soothing effect relatively fair. In this case, the compensation for the victim's material loss, have the consent of the victim is a prerequisite for plea bargaining is make an unnecessary move.

(four), trading contents of plea bargaining

In USA plea bargaining, America prosecutors can drop the charges, reduced charges or ask the judge for a mitigated punishment for conditions, in exchange for the defendant guilty answer. Both sides can be traded in sentencing, also can be traded on the nature of the crime. Such as transactions in the crime and quantity of crime. China's national conditions and procedure based on the concept, our reference and transplantation of plea bargaining system may not be copied, the plea bargaining system can we draw the sentencing deals. Crime and crime number relates to the solemnity of the law and the inertia problem, at present is not for trade. In other words we plea bargaining system should be prohibited transactions in the nature of the crime.

Transactions in the sentencing, the key problem is to determine the range of measurement of penalty. Sentencing range is too small, the suspect, the defendant unattractive; sentencing range is too large, there may be challenges to judicial justice line, have the indulgence of criminal suspects and defendants, suspects, unfavorable to realize the purpose of penalty. I think at this point we can refer to the practice in Italy. Clearly stipulates the crime suspect, accused person get commutation range is less than that of the original sentence 1/3 through plea bargaining. The range of commutation standards, increase the transparency of sentencing, can prevent the abuse of power.

(five), the program design of plea bargaining

The basic procedure of Plea Bargaining: by the prosecution according to the circumstances of the case, decide whether to start the procedure of plea bargaining. The case is there evidence but not sufficient condition, the judgment standard is difficult to quantify, sometimes not controlled, debate, the three parties can reach common understanding, the judgment standard by the prosecution to grasp more appropriate. In other words, the leading right to start the procedure of plea bargaining by the control, debate, the two party has no right to start the program. The prosecution decided to start the procedure of plea bargaining shall inform the criminal suspects, defendants and their counsel. Control between the two parties, according to the evidence and their consultations, agreement, with the format text in the form of records of plea bargaining outcomes. Later defense gave up facts unclear, insufficient evidence of this argument, lighter sentencing suggestion controlled direction of the court. By a single judge of form and physical examination of the plea agreement, the focus of the review of the plea bargaining for knowingly and voluntarily, plea bargaining is based on a certain fact foundation. If the judge did not find the plea bargaining rules against the law, regulations, sentencing suggestion is lossless justice, deal with the protocol of confirmation, and load the court records. The judge accepted the plea bargaining agreement should open the contents of the agreement, the agreement that make and use the verdict form, the verdict was delivered, the law, the defendant shall not appeal, the prosecution may appeal. If the judge found that the plea bargaining agreement provisions against the law, regulations or loss of justice, plea bargaining agreement can be announced cancellation of the agreement. The case was returned to the prosecution, according to the general procedure to prosecution. In the subsequent proceedings, the defendant in the procedure of plea bargaining in the "admission" shall not be used as evidence. Plea bargaining takes legal effect, if there is evidence that the plea bargaining is issued in violation of the provisions of the law of justice, laws and regulations or serious damage, should be through trial supervision procedure to correct.

(six), set up supervision mechanism of plea bargaining

1. judicial review of plea bargaining. And existing laws are connected, the judge in addition to review the form of plea bargaining agreement, there is substantial review of the agreement. If the judge found that range, the defendant committed the crime does not belong to the application of plea bargaining procedure of plea bargaining has no basis in fact, certain facts and the judge finds the facts have bigger discrepancy, the defendant may be innocent, has passed the period for prosecution shall not be subject to criminal prosecution and prosecution, sentencing suggestion has damaged the judicial just wait for a circumstance, have the right to declare the plea bargaining agreement reached between the two sides to revoke the. Judicial review and the strict supervision to prevent both sides without principles of transactions, hold the bottom line of justice, maximize prevent judicial corruption.

2Establish and perfect the restriction mechanism. On the prosecution discretion. Any power have be alienation, to prevent abuse of the prosecution discretion, establish a strict constraint mechanism from the legal level. Shall clearly stipulate the prosecutor personal only to start the procedure of plea bargaining in the application right, without the right to decide. The prosecution attorney department found the handling of cases which belongs to the range of the application of plea bargaining procedure, to the attorney general the starting procedure of plea bargaining in the application to the chief procurator, prior to the filing of the application, the prosecutor shall heed the opinions of the victim. If the attorney general does not agree to start the application of plea bargaining, the plea bargaining is terminated; such as the attorney general to report discussed by the procuratorial committee, discussion can officially launched the plea bargaining procedure through the rear. On whether to start the procedure of plea bargaining for prosecutors set two rigid constraints, can prevent the plea bargaining into individual judicial personnel obtain illegal interests, cause corruption.

3The external supervision. Because of the design of the system, only to the opinions of the victim as a reference for the prosecution whether to start the procedure of plea bargaining, not the determining factor. In consideration of the victim's rights and interests, we should clear the victim supervision right of plea bargaining at the system level. The prosecution made the plea bargaining decision, notify the criminal suspects, defendants and their lawyers, should inform the victim. The victim does not agree with the case of plea bargaining, the plea bargaining should be within three days of receipt of notification of the application for reconsideration, put forward to make the Procuratorial Committee of the plea bargaining decision, the procuratorial committee reply after receiving the application for reconsideration within three days. Both sides agreed to the plea bargaining, the prosecution made the decision not to initiate a prosecution, the victim can be based on criminal law article145Provisions, directly to the people's court.2003Implementation of the "about people's Procuratorate investigation cases directly accepted by the People Supervisors System regulations (Trial)", the people's supervisor system become the external supervision system of a kind of rigid supervision and procuratorial organs exercise their rights. The authors believe that the people's supervisor as an external force on both sides of the plea bargaining is the appropriate supervision.

 Six, the conclusion

The system of plea bargaining as a crystallization of the world legal culture, it is essentially a technical system. It can become the judicial practice in the world has demonstrated its strong vitality, proving itself for the world's inner regularity of the reasonable kernel, the regularity of the component is worthy of our reference and transplantation.

In the process of judicial reform in be just unfolding, we have carried out a summary procedure, summary trial of general procedure and other series of measures, but still can not effectively solve the judicial dilemma at present. Outside the Box, jade, the introduction of plea bargaining system to solve the judicial dilemma we are facing in the train of thought is a bold breakthrough. The author thinks that can not find in the ratio of plea bargaining system more effective system, plea bargaining system is a solution to our present judicial situation, operational choice. In this paper, based China plea bargaining system necessity and feasibility in the demonstration, design Chinese the plea bargaining system, aims to attract, attract attention to the system, in order to as one of the legal culture in the world of the plea bargaining system can soon become part of the law system of China, right they boarded the China judicial practice stage.

 

Reference

1Ke Gezhuang, Du Minxia "on America plea bargaining and prosecutors role", Chen Guangzhong editor of "plea bargaining in the Chinese"[M],94Page, Chinese procuratorial press,2003Year Edition

②Song Yinghui, Li Zhe "plea bargaining system review and thinking", Chen Guangzhong editor of "plea bargaining in the Chinese"[M],229Page, Chinese procuratorial press,2003Year Edition

③Yang Jianguang, Zhao Tong "China in view of criminal procedure of plea bargaining", Chen Guangzhong editor of "plea bargaining in the Chinese"[M],328Page, Chinese procuratorial press,2003Year Edition

④He Jiahong, "on America procuratorial system features"[J]Translation and comment "," foreign law1995No.4Period, the24Page

5"Before the procedure of criminal trial"[M]Editor in chief Chen Weidong 266Renmin University of China press2005Year Edition

⑥"Legal Daily"[N], 2002Years 4On 29Day, 5On 18DayReport

The "Shenzhen Evening News"[N], 2007Years 1On 31DayReport

"Wu Dahua, Jiang Xihui" seeking efficiency and justice "Chen Guangzhong editor of" the fulcrum of plea bargaining in the China "[M],83Page, Chinese procuratorial press,2003Year Edition

The NetEase[N], 2006Years 4On 6DayReport