【 Jurisprudence 】 To fulfill objective obligations to promote leniency of guilty plea

2022-06-01 0 By

In order to guarantee the quality of cases, protect the rights of defenders and prevent judicial errors, the objective obligation of prosecutors should be emphasized.➤ In order to guarantee the credibility of the leniency system of guilty plea and make it stable and long-term, prosecutors in guilty plea cases can adhere to objective obligations from five aspects: litigation care obligation, right protection obligation, power restraint obligation, interpretation and reasoning obligation, and equal consultation obligation.In order to guarantee the quality of the case, protect the rights of the defenders, and prevent judicial errors, the objective obligation of prosecutors should be emphasized.The objective obligation of prosecutors is confirmed by the Procurator Law revised in 2019, and according to article 2 of the Guiding Opinions of the People’s Procuratorates on Sentencing Suggestions for Guilty plea Cases (hereinafter referred to as the Opinions), “The people’s Procuratorates shall adhere to the following principles when making sentencing suggestions for guilty plea cases…(3) Be objective and impartial.Evidence of guilt, innocence, light crime, severe crime, leniency and severity should be collected and examined comprehensively, opinions of the criminal suspect, defendant, defender or duty lawyer, victim and his agent AD litem should be listened to in accordance with the law, and suggestions for sentencing should be put forward objectively and impartially…”Article 21 (1) further states: “The prosecutor shall thoroughly examine the factual evidence, accurately determine the nature of the case, formulate preliminary sentencing recommendations based on the circumstances of the sentencing, and organize the hearing of opinions.”The necessity for the procurator to fulfill the objective obligation in the case of guilty plea is the inevitable requirement for the procuratorial organ to take the leading responsibility.The leading responsibility of the procuratorial organ is clearly reflected in the handling of guilty admission and punishment cases. The higher application rate of the leniency system of guilty admission in the examination and prosecution link and the higher adoption rate of sentencing suggestions in the trial stage reflect that the procuratorial organ not only has a series of procedural rights, but also has a considerable degree of substantive handling suggestions.Obligation is usually reflected in the responsibility after violation. According to the basic legal principle of “unity of power and responsibility”, the greater the power, the more obligations, the heavier the responsibility.To prevent wrong cases and improve the quality of handling cases.In the case of guilty admission, which is subject to quick adjudication procedure, the court investigation and court debate are generally not carried out, and the emphasis on the objective obligation of prosecutors is an important safeguard for preventing wrongful cases and an important measure for realizing the judicial protection of human rights.Role positioning requirements in pretrial procedure.A large amount of litigation work is completed by prosecutors in the pre-trial stage, such as evidence discovery, sentencing negotiation and so on.Negotiation between prosecution and defense is one of the ways to exercise the right of defense.In the pretrial procedure, the prosecutor should not only lead the leniency of the guilty plea, but also be impartial and fully listen to the opinions of the defense.This kind of role change requires the procurator to fulfill objective duty.There are three problems that should be paid attention to when prosecutors fulfill objective obligations in cases of guilty plea: first, the balance between the protection of the rights of the criminal suspects and the pursuit of the value of litigation efficiency;Secondly, the balance between the prosecutor’s function as a criminal investigator and the neutral role;The third is the balance between the application rate of leniency system of guilty plea and the proposal of “punishment for his crime”.The balance between the protection of the rights of criminal suspects and the efficiency of litigation.It is an important part of the objective duty of prosecutors to protect the litigious rights of criminal suspects with the right of defense as the core.In the case of guilty plea, prosecutors should guarantee the litigation rights of suspects, including but not limited to evidence discovery, negotiation between prosecution and defense, meeting with defense lawyers, and full listening to opinions, so as to deal with the relationship between the efficiency of litigation.The balance between the criminal prosecution function and the neutral role.Prosecutors take investigating and punishing crimes as their basic duty.Based on this, presenting the evidence of guilt and prompting the suspect to admit guilt not only conforms to its functional orientation, but also can reduce the burden of proof.However, due to their leading responsibilities in the pre-trial procedure, they are required to listen to the opinions of the criminal suspect, his or her lawyer on duty and the defender, and accept the evidence of the suspect’s innocence or light crime, etc., and so on, their centrality should also be emphasized.The balance between higher application rate of leniency system of guilty plea and reasonable suggestion of sentencing.In the case that the leniency system of guilty plea is maintained a high application rate, it should be noted that some prosecutors should avoid being “lenient” when proposing sentencing suggestions.Because, only leniency, will be attractive to the suspect, so that the suspect confessed to the crime.For the accused, sentencing is the most important matter concerning his vital interests.However, if the sentencing proposal fails to reflect the criminal law principle of “consistent crime and punishment”, “crime of unpunished”, it deviates from the objective obligation.In order to ensure the credibility of the admission of punishment leniency system, and can go steady and long, the admission of punishment in the case of the prosecutor can adhere to the objective obligation from the following five aspects: litigation care obligation.According to article 173 (2) of the Criminal Procedure Law, “If a criminal suspect confesses his guilt, the people’s procuratorate shall inform him of his litigation rights and the legal provisions of the confession”.This provision reflects the prosecutor’s duty of litigation care.The “notification” shall be made in written form and signed by the criminal suspect.For those who violate the obligation of notification, adverse litigation consequences should be stipulated, and the confession obtained from this should not be used as evidence, so as to ensure the implementation of the obligation of care in litigation.”Opinion” prescribed in paragraph 1 of article 24: “when listening to the people’s procuratorate, shall be the litigation rights of criminal suspects and pleaded guilty to forfeit their from the law, the criminal facts, alleged crime and sentencing plot, quasi sentencing suggestion on duty and the legal basis to inform the criminal suspect and his defenders or lawyer.”This requires the prosecutor to pay attention to the obligation of litigation care when fulfilling the objective obligation.Rights guarantee obligations.The law, judicial interpretation and relevant judicial explanatory documents stipulate many litigation rights of the accused, such as the right to know, the right to obtain effective legal help, the right to reverse, the right to dissent, etc.At the same time, the provisions of the defense and duty lawyers a number of litigation rights: the right to meet, the right to read files, the right to negotiate and so on.Rights and obligations correspond, the exercise of rights depends on the performance of obligations, there is no right without obligations.The effective exercise of the above-mentioned rights depends on the performance of the objective obligations of the procurator.In order to protect the suspect’s right to know, the system of evidence discovery should be established as soon as possible.In order to guarantee the result of sentencing proposal and reduce the contravention, the negotiation rules of prosecution and defense should be established.In order to guarantee the voluntary, authenticity and legality of criminal suspects’ admission of guilt, effective legal help should be ensured and the exercise of the right of the criminal suspects to renege should be guaranteed.At present, the more concerned question is whether the criminal suspect admits guilt or whether the defender can plead innocence or sentencing.In this regard, it concerns the exercise of the criminal suspect’s most basic litigation right — the right of defense.Article 37 of the Criminal Procedure Law stipulates: “The responsibility of a defender is to put forward materials and opinions that the criminal suspect or defendant is not guilty, that the crime is minor, or that his criminal responsibility is relieved, and to safeguard the procedural rights and other lawful rights and interests of the criminal suspect or defendant.”It can be seen that the defender has relatively independent right of defense.In this case, according to the provisions of the law, the defender puts forward the opinion of “not guilty” and “light crime”, which is just the embodiment of its performance of defense duty.Some authoritative opinions hold that: “If the defendant voluntarily confessed to the crime and signed the statement, even if the lawyer put forward the defense opinion of innocence or light crime, the court believes that the charges charged by the procuratorial organ are correct after hearing, the leniency system of guilty plea should still be applied in accordance with the law.”On the occasion when the defender pleads not guilty, the defendant can still apply the leniency system of guilty plea, which means that when the accused pleads guilty, the defender can plead not guilty.Article 22 (1) of the Opinions stipulates: “When dealing with a case of guilty plea, the People’s Procuratorate shall guarantee the criminal suspect’s access to effective legal help in accordance with the law.If a criminal suspect requests to entrust a defender, his right to defense shall be fully guaranteed, and it is strictly forbidden to ask the criminal suspect to rescind the entrustment.”Power restrains duty.The growth and realization of power need restraint and protection of power.In practice, some criminal suspects should be prevented from confessing their guilt against their will for fear of being detained in prison.On the surface, the criminal suspect signing the confession letter is voluntary and authentic, but the form cannot cover up the substance. In this case, we should pay special attention to the possibility of the criminal suspect’s innocence.Therefore, prosecutors should pay attention to the equality and volunariness of the negotiation between prosecution and defense when exercising their power, and put forward sentencing suggestions according to the relevant provisions of sentencing guidelines for criminal suspects who do not plead guilty.The duty of interpretation and reasoning.Prosecutors should make full interpretation of the law when making sentencing recommendations.The statutory and discretionary sentencing circumstances should be clarified, and the baseline and starting penalty should be put forward by referring to the handling rules of similar cases in recent years.It should be pointed out one by one how the severity and severity of the circumstances affect the recommended punishment.In this way, judicial resources can be saved and unnecessary differences reduced.In practice, prosecutors should not be lenient unilaterally in order to pursue the application rate of the system, which is contrary to their objective obligations.If the crime and punishment imbalance, to the trial stage, will increase the judicial cost, reduce the efficiency of litigation.Article 25 (1) of the Opinions stipulates: “The people’s Procuratorate shall fully explain the reasons and basis for the sentencing proposal, and listen to the opinions of the criminal suspect and his defender or the lawyer on duty on the sentencing proposal.”This provision reflects the prosecutor’s duty of interpretation and reasoning.Equal consultation obligations.Negotiation is the essence of the leniency system of guilty plea. Only the equal status, equal negotiation ability and equal opportunity of the defendant and the defendant can guarantee the voluntariness and authenticity of guilty plea.During the consultation process, the defense can not only express its views on sentencing issues, but also negotiate the evidence, facts and charges, and present its views.Article 25, paragraph 2, of the Opinions provides that:”If the criminal suspect and his defense counsel or the lawyer on duty have different opinions on the sentencing proposal, or submit evasive materials that affect sentencing, and the People’s Procuratorate considers the opinions of the criminal suspect and his defense counsel or the lawyer on duty to be reasonable after examination, it shall adopt the opinions and adjust them accordingly. If the opinions are considered unreasonable after examination,Explanations should be made in light of legal provisions, circumstances of the whole case and judgments of similar cases.”This makes “listening to opinions” in the form of consultation, reflected as a two-way exchange.In order to ensure the equality of consultation, the following three points should be made clear: First, custody measures should be taken prudently to create conditions for criminal suspects to participate in consultation on an equal footing.Taking the opportunity of carrying out the criminal justice policy of less arrest, careful prosecution and careful remand, on the basis of compensating for losses and gaining understanding, the compulsory measures of detention should be carefully taken for misdemeanor cases committed by criminal suspects who plead guilty.In this regard, Article 140 of the Rules of Criminal Procedure of the People’s Procuratorates stipulates: “If a criminal suspect is suspected of a relatively minor crime and is not suspected of any other major crime, a decision may be made not to approve his arrest or not to arrest him under any of the following circumstances:…(3) a criminal suspect who commits a negligent crime, shows remorse after committing the crime and effectively controls the loss or actively compensates for the loss;(4) the criminal suspect and the victim have reached a reconciliation agreement in accordance with the relevant provisions of the Criminal Procedure Law and, upon examination, the reconciliation is considered to be voluntary and lawful and has been performed or provided with guarantee;(5) if the criminal suspect confesses his guilt;…”Second, it is clear that lawyers or defenders on duty should participate in consultation activities and may apply to the procuratorial organ for consultation. In principle, the procurator should arrange time for consultation.If no defender is appointed, a lawyer on duty shall be designated for consultation.The criminal suspect shall participate in the whole process of the consultation.The third is the consultation as the procuratorial organs to put forward formal sentencing recommendations and criminal suspects to sign the letter of admission of guilt.In this regard, article 27 (1) of the Opinions stipulates: “If a consensus is reached after hearing opinions, the criminal suspect shall sign a letter of admission of guilt.Article 174 paragraph 2 of the Criminal Procedure Law of the People’s Republic of China does not require the signing of a written statement, which shall not affect the recommendation of leniency in sentencing.”This also shows that consultation or listening to opinions is a pre-procedure for signing the letter of guarantee.Supreme People’s Procuratorate