The creation of China’s lenient punishments for those confessing to their crimes and accepting punishments in criminal cases and its theoretical reflection

1.3.5 Promote effective defense theory in China

“As a legal system, the effective defense and invalid defense systems are deeply imprinted with American law, but as a legal theory, the effective defense theory and invalid defense concept have a universal value and represent the development direction of the criminal defense system” (Chen 2014, 104-105). It is undeniable that considerable progress has been made in the defense system of criminal litigation, which is typically reflected in the investigation: the development course of criminal suspect's right to defense has developed from no right to legal help, to lawyers providing “legal help” and then to a “lawyer's advocate” providing defense services. The reform of the leniency system needs to ensure that criminal suspects and defendants voluntary, authentically, and “intelligently”, “knowingly”, required by the American plea-bargaining system on admitting to a crime and accepting punishment Brady v. U. S., 397 U. S. 742. 1970. Accessed March 4, 2021. https://supreme.justia.com/cases/ federal/us/397/818., must want to have a more adequate and effective defense system to ensure it (Wang 2017, 28). Some viewpoints even bluntly advocated that the perfect reform on the leniency system should ensure voluntariness, wiseness and being aware of the specific requirements of admitting to a crime and accepting punishment (Bian 2012, 19-21). There is no doubt that admitting to a crime and accepting punishment in the pre-trial will conducted under a strong prosecution of the investigation organ and the procuratorate, and it will be obtained under the circumstances of asymmetric evidence information. How can we ensure that the accused confesses and accepts punishment out of free will, and the choice is being made in a rational state, there is sufficient and comprehensive help from a lawyer in order to form the equality of litigation activities, the sufficiency of information acquisition, the rationality of litigation choice? By “establishing the concept of effective defense and establishing a quality control system aimed at regulating lawyers' defense is the only way for China's future development of criminal defense systems” (Chen 2014, 105). Learning from the experience of the effective defense system in the United States (Qi 2015, 127-130), the effective defense system in China needs to be developed from the following aspects: first, effective defense requires the adequacy and eligibility of services provided by a lawyer. The “Opinions on Carrying out Legal Aid Duty Lawyer Work” issued by the Supreme Court, the supreme people's procuratorate, the ministry of public security, the ministry of justice, and the legislative affairs commission of the National People's Congress and the “Measures on Carrying out Full-scale Pilot Work of Lawyer Defense for Criminal Cases” jointly issued by the Supreme People's Court and the Ministry of Justice called for the full coverage of the legal aid duty lawyer service and the full coverage of the lawyer's defense in criminal cases. This represents significant progress in effective defense, but more concrete measures are needed in terms of the quality of service and competence of lawyers. Secondly, the quality control index system of effective defense should be established to realize the reference basis of an effective defense standard. Thirdly, perfect the invalid defense review system and obtaint effective defense through reverse regulation. Finally, the relief system for invalid defense should be determined to provides the possibility for the defendant to correct the adverse litigation result caused by an invalid defense.

1.3.6 The theory of the protection of the right to plead guilty and accept punishment with leniency came into being

Respecting and protecting human rights is one of the goals of criminal procedure and it was written into the task norms of China's criminal procedure law in 2012. Through the two rounds of amendments to the Criminal Procedure Law, great progress in protecting the accused's human rights has been made in China: the principle against forced selfincrimination is enshrined in law, and the exclusion rule of illegal evidence is established, legal aid is transferred to the investigation link, and the investigation link has the right of lawyers to defend, etc. Reform of the system of leniency for the admission of guilt and acceptance of punishment will further boost the development of protecting human rights. From the perspective of comparative research, some scholars have argued that the simplification of trial procedures is a phenomenon that occurs after the rule of law has developed to a higher stage. For example, more than 90 % of the application rate of the simplified procedures in the United States is supported by a list of important rights enjoyed by suspects before trial. However, our country's support in this regard is still quite weak. Therefore, the reform of the leniency system is not only a matter of simplification of the trial process in China. At the same time, it is more important to strengthen the protection of the rights of a series of pre-trial procedures. The latter is the solid foundation of the former's legitimacy. Judging by the difficulty of reform, the latter is bound to be an even harder task (Sun 2016, 19). For this reason, by referring to relevant systems outside the region, China can completely achieve the high standards of human rights protection from the improvement and reform of the system of leniency of confession to a crime and acceptance of punishment, so as to prevent innocent people from being forced or enticed to confess to their crimes, which will also promote the reform of the trial -- centered litigation system. From the perspective of ensuring the voluntariness, wiseness, and consciousness of confession to a crime and acceptance of punishment, it is not enough to provide legal aid in form. It is also necessary to guarantee the accused in the pre-trial stage of investigation and prosecution, the right to know the information of criminal charges, the right to participate in the procedure, and the legal right to safeguard the application of various compulsory investigation measures. These levels of the rule of law should be substantially enhanced (Sun 2016, 19). In addition, there should even be the right of revocation and the right of relief with adverse procedural consequences for the confession of a crime and the acceptance of punishment in order to form the post-effect restriction on the right of strong prosecution. For the victims and other participants in the lawsuit, they will also obtain some new rights and guarantees from the leniency system. For example, when confessing and negotiating the penalty, the victim shall have the right to express his opinion, the right of recourse for compensation and timely compensation realized, the right to invite agents ad litem to participate in the negotiation of a guilty plea and penalty during investigation, etc. Therefore, the reform of the leniency system will bring about progress and enrichment of human rights protection, which will be more conducive to the reform of the litigation system centered on trials and the realization of complementary reforms that complement each other.

punishment leniency china entity

Conclusions

The reform of China's lenient system of admission of guilt and punishment is a supporting measure to carry out the reform of the litigation system centered on a trial. It achieves the goal of separating complicated and simple litigation in parallel with the substantive trial. Through the practice of the pilot reform and the standardized implementation, especially with the help of academic research, a relatively complete lenient system of admission of guilt and punishment has been formed. It includes both entity leniency and procedural simplification. It is reflected not only in the basic principles of criminal procedure, but also in the special procedures Such as fast-track sentencing procedures, admission of guilt, cancellation of the case and non-prosecution for some special adimission of guilt, etc.. It should be noted that China's lenient system is not a plea-bargain system as in the US. It is merely a negotiation of penalties, not a bargain of criminal charges. The negotiation of penalty is strictly limited by law and the space of penalty discretion is limited. It attaches great importance to Chinese characteristics such as the voluntary protection of the confession based on “penitence”. At the same time, the reform of the lenient system has also contributed to the renewal of some theories, such as penalty theory of post-crime behavior, justice and efficiency balance of the program from the simple theory, etc. With further judicial practice, China's lenient system of admission of guilt and punishment will encounter a series of problems and promulgate in-depth reform of the system.

References

1 Bian, Jianlin. 2012. “How to treat the defendant's guilty plea -- a revelation of plea bargaining”. Zhиngfa lщntвn (zhongguo zhиngfa dаxuй) 20 (6): 19-23. (In Chinese)

2 Chen, Guangzhong, Ma Kang. 2016. “Several Important Issues of The leniency system of the admission of the crime and the acceptance of the punishment”. Falь kexuй 8: 3-11. (In Chinese)

3 Chen, Ruihua. 2006. “Private Cooperation Model in Criminal Proceedings”. Faxuй yвnjiu 5: 15-52. (In Chinese)

4 Chen, Ruihua. 2014. “Effective Defense in Criminal Proceedings”. Suzhou dаxuй xuйbаo (zhйxuй shиhui kexuй ban) 5: 94-105. (In Chinese)

5 Chen, Weidong. 2016. “Research on t the leniency system of the admission of the crime and the acceptance of the punishment”. Zhongguo faxuй 2: 48-64. (In Chinese)

6 Gao, Tong. 2017. “Research on the Proof Standards of Criminal Expedited Procedures”. Faxuй lщntвn 2: 104-111. (In Chinese)

7 Gu, Yongzhong. 2016. “Several Theoretical Issues on improving the leniency system of the admission of the crime and the acceptance of the punishment”. Dangdаi faxuй 6: 129-137. (In Chinese)

8 Hu, Ming. 2017. “Negotiating procedures for confession: patterns, problems, and bottom lines”. Faxuй 1: 169-177. (In Chinese)

9 Hu, Yunteng. 2019. “The leniency system ofthe admission ofthe crime and the acceptance ofthe punishment is not a copy of western `plea bargaining' or a Chinese version (depth Good text)”. Accessed December 7, 2019. https://mp.weixin.qq.com/s/uE-MXjFphQLsOtXgx_iEsg. (In Chinese)

10 Li, Bensen. 2013. “The two-to-eight theorem in law -Quantitative Analysis Based on the Trial of Defendant's Plead Case”. Zhongguo shиhui kexuй 3: 85-105. (In Chinese)

11 Li, Yang. 2016. “Look at the weathervane of judicial reform in the year of crisis -- the central focus political and legal work conference”. Rйnmin fayuаn bаo, 2^nd ed. Beijing, Ren Min Fa Yuan Xin Wen Chuan Mei Zong She Publ. (In Chinese)

12 Maynard, Douglas W 1984. Inside Plea Bargaining-The language of negotiation. New York, London, Plenum Press.

13 Qi, Jianjian. 2015. “Effective Right of Defense in Plea Bargaining in the United States”. Bljiаo faxuй 6: 126142. (In Chinese)

14 Sun,Yuan. 2016. “The Proof Standards for Cases of the admission of crime and the acceptance of the punishment”. Guojia faguan xuйyuаn xuйbаo 11: 14-19. (In Chinese)

15 Wang, Minyuan. 2017. “Research on difficult problems of the leniency system of the admission of the crime and the acceptance of the punishment”. Zhongguo faxuй 1: 17-34. (In Chinese)

16 Wang, Ruijun. 2016. “Interpretation of `the admission of the crime and the acceptance of the punishment' from the perspective of substantive law and research on its judicial application”. Zhиngzhi yu falь 5: 108-117. (In Chinese)

17 Wei, Xiaona. 2016. “Improving the system of admitting guilty and accepting punishment for leniency: Keyword development in Chinese context”. Faxuй yвnjiu 4: 79-98. (In Chinese)

18 Xie, Dengke. 2015. “The standard of proof in criminal summary procedure”. Dangdаi faxuй 3: 135-143. (In Chinese)

19 Xiong, Qiuhong. 2016. “A theoretical review and system improvement of the leniency system of the admission of the crime and the acceptance of the punishment”. Faxuй 10: 97-110. (In Chinese) Zhang, Jiansheng. 2015. “Exploration and theoretical construction of pilot procedure for Fast-Track Sentencing Procedure”. Rйnmin jianchв 9: 41-48. (In Chinese)

Размещено на Allbest.ru