Focus on the leniency system for confessions and punishments: torture has greatly reduced, and some practical problems remain to be solved
The leniency system was formally implemented for nearly two years. This major reform, regarded as the criminal procedure system, has moved forward in the exploration of theory and practice.
The Paper noted that from the pilot in November 2016 to the formal entry into the law in October 2018, the system of confession of guilt and punishment has been moved forward from the leniency system, constantly posing new challenges to the procuratorial organs.
How to implement this system better in the new stage?
On the morning of September 4, the "Symposium on the Modernization of National Governance and Leniency System for Plea and Punishment" jointly organized by the Supreme People's Procuratorate and the China Criminal Procedure Law Research Association was held in Beijing.
Many guests from the judicial practice and legal theory circles conducted open discussions around the aforementioned topics, hoping to provide advice and suggestions for promoting higher quality and better application of the leniency system.
Zhang Jun, the chief procurator of the Supreme People’s Procuratorate, said in his speech that the implementation of the leniency system for confessing guilt and punishing requires further study and resolution of problems in the application process from the height of national governance.
The value of the leniency system of confessing guilt and punishing is highlighted, and the exercise of procuratorial power should pay attention to restraint
The leniency system for confessing guilt and punishing is a typical system design for procuratorial organs to perform their leading responsibilities in criminal proceedings. It refers to those who voluntarily and truthfully confess their crimes to criminal suspects and defendants, have no objections to the alleged crimes, and agree to the sentencing proposal and sign a statement of recognizance , Leniency according to law.
In September 2016, the 22nd Session of the Standing Committee of the Twelfth National People’s Congress passed the “Decision on Authorizing the Two Highs to Launch the Pilot Work of the Leniency System for Criminal Cases in Certain Areas”, authorizing criminal activities in 18 regions including Beijing Plea guilty and punishing cases were piloted.
In October 2018, the revised Criminal Procedure Law formally established a leniency system for pleading guilty and punishing.
In October 2019, the "two high-level departments and three departments" issued the "Guiding Opinions on the Leniency System for Plea and Punishment", which made specific provisions on issues related to the leniency system.
The leniency system of plea guilty and punished is a criminal justice system with Chinese characteristics.
The Paper noted that from the pilot program in 2016 to the formal entry into the law in October 2018, the system ran forward. The pilot period has been nearly four years and it has been officially implemented for nearly two years.
Data from the Supreme People’s Procuratorate shows that among the cases handled by the national prosecutors using the leniency system in 2019, the defendant’s appeal rate was 3.5%. Overall, the appeal rate remained at a low level, and the value of the leniency system was gradually Highlight.
"Whether it is from the legislative level or the judicial level, this system is a successful reform of the criminal justice system." said Chen Weidong, a professor at Renmin University of China Law School. Great improvement.
In Chen Weidong's view, confession of guilt and punishment is a right granted by the law to criminal suspects and defendants, and the signing of the confession of guilt and punishment means reaching a consensus.
"Therefore, from the perspective of the nature of power, the procuratorial organ should respect the opinions of criminal suspects and defendants, and ensure that the signing of the confession of guilt and punishment conforms to the principle of voluntariness and authenticity."
However, Chen Weidong also reminded that when applying the leniency system for confessing guilt and punishing, we must adhere to the principle of restraint in the criminal law. "From the perspective of the spirit of legislation, except for special circumstances, as long as the party confesses guilty and confesses punishment, he should be given leniency. ."
Long Zongzhi, a professor at the Law School of Sichuan University, has always been a proponent of the leniency system.
He also believes that since the implementation of the leniency system for plea and punishment in 2018, the results have been significant, improving the efficiency of litigation, including the efficiency of conviction, and also protecting the legitimate rights and interests of the parties to a certain extent, but there are also imbalances in the prosecution and defense in practice. The two contradictions of the inconsistent prosecution and law.
The Paper noted that more than 20 years ago, Long Zongzhi published an article suggesting that my country should implement a leniency system for pleading guilty.
In his view, the leniency system of confession and punishment is actually a compromise between the state and the criminal defendant: the defendant’s waiver of the right of defense includes the right not to be forced to incriminate himself, and to fulfill specific legal obligations and prosecutions. The party demanded that the state then contracted its penalty power and transferred certain litigation rights.
In response to the aforementioned two contradictions, Long Zongzhi put forward six suggestions: First, the procuratorial organs should be more cautious and reasonable to implement the leniency system for confessing guilt and punishing, and pay attention to the modest nature of the exercise of procuratorial power; The lenient system should implement a series of technical improvement measures.
Including the precision of sentencing recommendations, the implementation of evidence discovery, the strengthening of prosecution and defense consultations, and the implementation of a risk warning system; third, the procuratorial organs should perform their objective obligations to create the necessary conditions for the realization of the relative equality of confession and punishment and effective negotiation; Fourth, the procuratorial agency must respect the court’s judicial power, including the court’s substantive review of the case, adjust the unbalanced pattern of prosecution and defense through trials, and maintain judicial justice; fifth, the court’s review of sentencing recommendations must pay full attention to the fairness of the defendant. Cautiously change the sentencing recommendations; sixth, plead guilty and punished with caution in joint criminal cases, and make special regulations.
“The leniency system for guilty admission and punishment has been piloted in some areas to its full implementation. The results have been remarkable." Bian Jianlin, chairman of the China Criminal Procedure Law Research Association and professor of China University of Political Science and Law, commented that in recent years, the leniency system for guilty admission and punishment has been steadily steadily implemented and has significant effects. However, the problems existing in the system in practice also urgently need to be further sorted out and resolved.
Bian Jianlin bluntly stated that the modernization of national governance puts forward new requirements for the leniency system for confession of guilt and punishment. However, there are still some problems in the implementation of this system. There are some differences in understanding and different opinions in understanding, and there are still certain problems in the cooperation and restriction of relevant departments.
In particular, how to ensure that the criminal suspect and the defendant voluntarily confess their guilt, how to effectively guarantee the procedural rights of the criminal suspect and the defendant, how to give full play to the active role of the on-duty lawyer, and how to make sentencing recommendations appropriately and accurately.
"Since the formal implementation of the leniency system for confessing guilt and punishing, it has been generally smooth, stable, and effective, promoting social harmony and stability more effectively. Defendants pleading guilty and submitting to the law have become the norm, punishing crimes more timely and effective, and the appeal rate after the first instance of confessing guilt and punishing cases is far lower. The overall appeal rate of criminal cases.” Zhang Jun said bluntly that to implement the leniency system for guilty plea, we need to stand at the height of the modernization of national governance and work together to further study and solve the problems in the application process.
Scientization of sentencing recommendations is the key, and rationality must be strengthened
The leniency system of confessing guilt and punishing is a major reform of my country's criminal procedure system in recent years.
In judicial practice, should prosecutors propose precise sentencing recommendations?
This issue has caused extensive discussion among prosecutors.
Miao Shengming, director of the First Prosecutor's Office of the Supreme People's Procuratorate, pointed out in an exclusive interview with The Paper that the accuracy of sentencing recommendations is what the procuratorial agency should have in handling guilty and punishing cases, and it is also an inherent requirement of the system.
He believes that the reasons for the proposal to determine the sentence and sentencing are mainly based on the following reasons: First, the sentencing recommendation in the case of confession and punishment is the result of the agreement between the prosecution and the defense and the determination of the sentence is the most direct and full embodiment of agreement.
The second is that the determination of penal and sentencing recommendations will help to reach prosecution and defense negotiations, and enhance the stability and predictability of the application of confessions and punishments.
The third is that the conviction and sentencing disputes have been resolved in the pre-trial stage in the confession and punishment case, and it has an objective basis and realistic possibility for making recommendations for determining the sentence.
"This means that in most cases, especially common and frequent misdemeanor cases, the procuratorial organ should make recommendations for determining the sentence. Of course, it can also be used for some new types, uncommon crime cases, and felony cases with complex sentencing circumstances. Put forward a range of penalties and sentencing recommendations." Miao Shengming said.
"Scientific sentencing recommendations are the key to the correct implementation of the leniency system." The former full-time member of the Supreme People's Court Trial Committee and the chairman of the Case Law Research Institute of the Chinese Law Society, Hu Yunteng also stated that my country's Criminal Procedure Law stipulates that confessing guilt and confessing punishment In cases, the People’s Procuratorate should make recommendations on the main sentence, additional sentences, and whether to apply probation. According to the “Guiding Opinions on the Application of the System of Plea and Punishment for Leniency”, the People’s Procuratorate should generally make recommendations for determining the sentence.
At the same time, both the Criminal Procedure Law and the Guiding Opinions stipulate that people's courts should generally adopt sentencing recommendations made by procuratorial agencies.
The Guiding Opinions’ further provisions on sentencing recommendations have given more important responsibilities and higher requirements to the procuratorial organ’s sentencing recommendations.
"The procuratorial organ’s proposal for sentencing within the legal sentencing range reflects the spirit of the prosecutor’s courage to take responsibility and bear heavy burdens.” Hu Yunteng believes that the sentencing proposal for a guilty plea case is not the unilateral will of the procuratorial organ, but an agreement between the prosecution and defense Consensus, to a certain extent, also reflects the victim's appeal. It is an important manifestation of my country's criminal justice respecting and protecting human rights and civilization and progress.
The People's Court adopts the sentencing recommendations for guilty and punished cases, essentially respecting the consensus of the prosecution and defense and the victim.
In Chen Weidong’s view, as a reference for the court’s sentencing decisions, the procuratorial organs can make distinctions based on different circumstances when making sentencing recommendations. “On the whole, there is no direct recommendation for the death penalty for cases that are difficult and complicated or even deserve the death penalty. Problem; for most cases, you can consider suggesting more range sentences."
"It is necessary to strengthen the rationality of sentencing recommendations." Hu Yunteng further stated that the prosecutor's rationalization of sentencing recommendations determines to a certain extent the level of reasoning in the judgment document.
Therefore, the procuratorial agency’s recommendations for sentencing must clarify facts, laws, and procedures, so that the people can feel fairness and justice in every aspect of handling cases.
Hu Yunteng also suggested that sentencing recommendations are the most important judicial opinion for handling guilty and punishing cases. Judges should review sentencing recommendations as an important task. They must seriously and responsibly conduct substantive review of the content, basis, procedures, and reasons of sentencing recommendations, and earnestly Avoid improper conviction and sentencing in cases of confession and punishment, and ensure the fairness of conviction and sentencing.
“It is the common responsibility of the judicial organs to play the role of the system of confessing guilt and punishing leniency." Gao Jinghong, Vice President of the Supreme Court, specifically pointed out that the system has been operating smoothly and orderly since the full implementation of the system. Significant results have been achieved in implementing the criminal policy of combining leniency and strictness, advancing the diversion of complicated and simple cases, and promoting fairness and justice.
He believes that it is the common responsibility of judicial organs to give full play to the role of the leniency system for confessing guilt and punishing and to make judicial contributions to the modernization of the national governance system and governance capabilities.
In judicial practice, we must unify our thinking, fully understand the value implications of the leniency system for confession, and see its role in reducing confrontation, saving judicial resources, and reducing the burden of litigation by litigants; we must base ourselves on national conditions and accurately grasp the principles of confession and punishment. For the design of a lenient system, the problems existing in the implementation of the system should be studied and explored based on our country's actual national conditions, and be solved in a practical and realistic manner; attention should be paid to summing up experience, improving the comprehensive supporting mechanism, and giving full play to the effectiveness of the system.
Lawyers are important participants and should not restrict the right to defense of innocence
Lawyers are important participants in the guilty plea process.
The Vice Minister of Justice Xiong Xuanguo pointed out at the seminar that since the implementation of the leniency system, lawyers on duty have actively participated in the work of duty lawyers and handled cases of confession and punishment in accordance with the law. In 2019 alone, duty lawyers across the country transferred a total of 56,000 legal aid applications. Provided 400,000 legal assistance cases and participated in nearly 340,000 cases of confession and punishment.
He said that in guilty pleas and punishment cases, lawyers must not only play the role of defender in the traditional sense, but also play multiple roles such as criminal suspects, defendants' legal consultants, agents negotiating with prosecutors, and collaborators of judicial organs. The effective implementation of the leniency system for confessing guilt and punishing is inseparable from the active and effective participation of lawyers, as well as the lawful performance of duties by lawyers.
"In the revised Criminal Procedure Law, the duty lawyer system is an important supporting system of the leniency system for confessing guilt and punishing, and it is an important system guarantee for the defendant to put in place the right of defense in pleading guilty and punishing." National People's Congress representative, chief of Beijing Xinli Law Firm Partner Yan Jianguo found in his research that in judicial practice, the duty lawyer system has problems such as insufficient supply, insufficient participation, and insufficient funding guarantees.
At the National Two Sessions this year, he also put forward the "Recommendations on Further Improving the Duty Lawyer System, Promulgating the "Working Measures for Legal Aid Lawyers", and Promoting the Implementation of the Leniency System for Plea and Punishment."
Regarding how to improve the duty lawyer system, Yan Jianguo believes that, first of all, on the basis of the Legal Aid Law, the Ministry of Justice takes the lead in formulating and improving the duty lawyer system, formulating and promulgating the work methods of legal aid lawyers, and further clarifying the duties and rights and obligations of duty lawyers.
Second, explore the establishment of remote witnessing and other work systems to help the grassroots solve the situation where the lawyers on duty are not in place.
Strengthen the coordination and cooperation of public security, procuratorate and judicial departments, integrate regional resources, and build a system of mutual deployment of on-duty lawyers in adjacent regions.
Third, appropriately increase the base of the national fiscal budget, enrich the case-handling funds of on-duty lawyers, and increase the enthusiasm of lawyers to participate.
Fourth, explore the national public lawyer system, and the state will hire lawyers to perform the duties of duty lawyers, especially establishing a mechanism for retired judges and prosecutors to provide legal aid services as national public lawyers.
Fifth, it is recommended that the Standing Committee of the National People's Congress conduct special law enforcement inspections on the implementation of the confession and punishment leniency system, and promote the modernization of the national governance system and governance capabilities.
Xiong Xuanguo said that with the in-depth advancement of the modernization of the national governance system and governance capabilities, the Ministry of Justice will take effective measures to improve the system of on-duty lawyers, in-depth advance the pilot work of full coverage of lawyers in criminal cases, and improve the protection mechanism for lawyers to participate in confessions and punishments. The function of lawyers is to jointly advance the work of confessing guilt and punishing leniency.
It is worth noting that with regard to whether lawyers in pleading guilty and punishing cases can defend their innocence, Tian Wenchang, director of the Criminal Professional Committee of the All China Lawyers Association, believes that when the client pleads guilty, lawyers can act in accordance with the law on the nature, role and application of law. For defense, the court may adopt the defense opinions of lawyers at its discretion.
"The leniency system for confessing guilt and punishing is still in the exploratory stage. From the perspective of effectively protecting the rights and interests of the defendant, the lawyer's right to defense of innocence should not be restricted."
Tian Wenchang suggested that the full coverage of criminal defense should start with confession and punishment cases. “Guilty confession and punishment cases require lawyers to ensure the voluntariness and authenticity of criminal suspects and defendants' confession and punishment. The participation of lawyers should be a necessary prerequisite for the confession and punishment procedure. ".
He also bluntly stated that in practice, some criminal suspects and defendants confessed guilt not voluntarily.
To solve this problem, on the one hand, the procuratorial organs should cautiously initiate public prosecutions and strive to improve the quality of public prosecutions; on the other hand, judges as referees must strengthen their neutrality and cannot intervene in advance.
The Paper, reporter Lin Ping