認罪認罰從寬制度中被追訴人權利保護研究—以公正與效率的動態平衡為基點

Abstract

In October 2014, the Fourth Plenary Session of the 18th Central Committee of the CPC, in its Decision on Several Major Issues Concerning the Comprehensive Advancement of the Rule of Law, proposed that "we should promote the trial-oriented reform of the litigation system to ensure that the facts and evidence of the cases investigated and prosecuted can withstand the examination of the law." As a supporting system, the Opinions also propose to "improve the system of leniency for guilty pleas and punishment acceptance in criminal proceedings" and realize the separation of complicated cases from the simple ones through rapid handling of cases involving guilty pleas and punishment acceptance. After a two-year trial process and the trial of the system of leniency for guilty pleas and punishment acceptance, on October 26, 2018, the Criminal Procedure Law was revised to formally establish the system of leniency for guilty pleas and punishment acceptance.

The system of leniency for guilty pleas and punishment acceptance has dual values. First, the accused is encouraged to plead guilty and accept punishment to reduce confrontation and resolve social conflicts. Second, the system of leniency for guilty pleas and punishment acceptance will simplify litigation procedures, improve litigation efficiency and save judicial resources. In this system, the accused party obtains lenient treatment by conceding part of his litigation rights to improve litigation efficiency and optimize litigation effects. The realization of the value of this litigation system depends on the fair treatment of the accused, which is reflected in the legislative and judicial protection of the accused's rights. However, the pursuit of litigation efficiency easily weakens the protection of the accused's rights. If the accused's rights are not protected, on one hand, it is difficult to ensure that he or she is willing to plead guilty and accept punishment, which may lead to injustice in substance; on the other hand, it is difficult to repentance. In the system of leniency for guilty pleas and punishment acceptance, it is necessary to pay attention to the balance between justice and efficiency. If he or she pursues litigation efficiency too much, it is bound to weaken the protection of litigation rights; and if he or she strengthens the protection of litigation rights too much, it is difficult to improve litigation efficiency. Therefore, it is necessary to combine the general theory of the accused's rights protection and the particularity of the system of leniency for guilty pleas and punishment acceptance.

Based on the dynamic balance between justice and efficiency, this paper studies the protection of the rights of those who are prosecuted in the system of leniency for guilty pleas and punishment acceptance by four chapters, in order to explore the particularity of the protection of the rights of those who plead guilty and accept punishment, enrich the theory of protection of the rights of those who are prosecuted, improve the litigation system, and provide guidelines for the protection of the rights of those who are prosecuted in the system of leniency for guilty pleas and punishment acceptance by judicial practice. The text is divided into three parts. There are four chapters:

The first part, namely, Chapter II, discusses the system of leniency for guilty pleas and punishment acceptance and the protection of the accused's rights. The system of leniency for guilty pleas and punishment acceptance is a kind of cooperation judicature, which is efficiency-oriented, while the protection of rights is based on confrontation and distrust.

In developing the trial system of guilty plea cases, some changes have taken place in the requirements of the guilty plea, the consequences of the guilty plea, and the application of procedures. The general trend is to give sentence concessions to defendants who plead guilty and accept punishment, thereby simplifying litigation procedures and improving efficiency. The system of leniency for guilty pleas and punishment acceptance should pay attention to the value of justice as well as the value of efficiency. The rights of the accused are an important part of human rights and can directly reflect the protection of human rights of a country or region. The protection of human rights in litigation of our country needs to be further improved. We shall strengthen the restriction on public power, strengthen the supply of private rights, and meanwhile implement right protection in good faith. With regard to the system of leniency for guilty pleas and punishment acceptance that is efficiency-oriented, more attention should be paid to the protection of the rights of the accused, which includes two levels of rights: (1) the original right, i.e., the right at the first level, including the right to voluntarily plead guilty, i.e., the right to be free from forced self-condemnation and the right to plead punishment voluntarily, i.e., the right to negotiate for sentencing; (2) the derivative right, i.e., the right at the second level, mainly including the right to choose procedures, the right to help a lawyer, the right to bail and the right to relief, etc. To protect the rights of the accused in the system of leniency for guilty pleas and punishment acceptance, it is necessary to maintain a dynamic balance between justice and efficiency.

The second part, namely, Chapter III and Chapter IV, aiming at the two core elements of the system of leniency for guilty pleas and punishment acceptance, to demonstrate the problem with the protection of the rights of the accused and the realization path thereof.

The third chapter studies the protection of the voluntary nature of guilty pleas, involving protecting the right to be free from coercion. Guilty pleas based on confessions can be classified into typical (admitting the charges) and atypical (admitting to constitute a crime). There are many types of guilty pleas, the severity is different, the probability of occurrence is different, and precautionary measures should be taken. The system of leniency for guilty pleas and punishment acceptance does not conflict with the right to be free from forced self-accusation, which itself will not lead to false confessions of guilt by the accused. Still, it should be taken as a critical point to protect the accused's right to be accused. For cases involving guilty pleas and punishment acceptance, the general standards of proof of "conclusive and sufficient evidence" shall be adhered to, and the evidence-based disclosure system shall be implemented at the stage of examination and prosecution to screen and prevent the "misidentification" of the nature of cases by the prosecuted, and judicial organs shall strengthen the examination.

The fourth chapter studies the issue of protecting the voluntary nature of punishment acceptance, which is to protect the accused's right to negotiate sentencing. Making a typological distinction of punishment acceptance is conducive to protecting the rights of those who are prosecuted. Pleas of guilty pleas and punishment acceptance is an independent circumstance of sentencing. Leniency can be interpreted to include leniency, mitigation and exemption of punishment. The system of sentencing negotiation has been formed in our country, which is beneficial to protect the accused's rights and strengthen its status as the subject of litigation. The negotiation on sentencing shall be carried out by the prosecutor and the defender at the stage of examination and prosecution, and the fairness of the process and results shall be ensured. The sentencing standards may be specified by formulating sentencing rules and guidelines, publishing guiding cases or otherwise, and the negotiation capability of criminal suspects shall be enhanced, and they shall be granted the right of repentance at different stages. The sentencing recommendations shall be made on the basis of full negotiation between the prosecutor and the defender, and the determination of punishment or the range of penalty shall be decided according to the case details. Sentencing recommendations are absolutely binding on the public prosecution organs and have no legal binding force on the accused, but relatively binding on the court; therefore, the sentencing recommendations shall be granted the examination power of the judicial organs.

The third part, namely Chapter V, which comprehensively discusses the supplementary path of the rights of the accused, which is also the supplementary right to realize the voluntary nature of guilty pleas and punishment acceptance.

First, the right to choose procedures, involves realizing the voluntary nature of simplified procedures. The simplified procedures for guilty pleas are legitimate and do not violate the principle of due legal procedures. However, the simplified procedures shall be limited to the protection of fairness, and the current litigation system tends to pursue efficiency too much and neglect the rights of the accused. Therefore, it is necessary to give the accused the right to choose the application of procedures, which shall be improved through the legislative and judicial levels.

The second is the right of lawyers to help. The participation of lawyers is a guarantee for the voluntariness and intelligent nature of the accused to plead guilty and accept punishment. Besides acting as the defender, lawyers can also provide legal aid. The leniency system of confessing guilt and accept punishment for duty lawyers has contributed to the formation of a system of providing legal aid. However, there are problems such as low participation of lawyers and the limited effect of providing legal aid. It is necessary to perfect the legal provisions of duty lawyers. In the long run, the system of entrusted defense and appointed defense should be fully implemented to ensure that every accused who pleads guilty and accepts punishment have their defenders participate in the litigation.

Third, the right to bail. The right to obtain non-custodial coercive measures, namely the right to bail, is of double value in the system of leniency for guilty pleas and punishment acceptance. In terms of system design, it is necessary to specify the principle that non-custodial coercive measures shall be taken as a norm for the accused who pleads guilty and accepts punishment, and the custodial coercive measures shall be taken as an exception. From the practical level, it is necessary to mobilize the litigant parties to apply non-custodial coercive measures.

Fourth, the right to remedy, mainly the protection and limitation of the right to appeal. There is a conflict between the system of appeal and the system of leniency for guilty pleas and the system of leniency for guilty pleas and accept punishment. Under the current system, the right of appeal is the legal right of the defendant, which shall be guaranteed in accordance with the law. However, the tendency of the defendant abusing the right of appeal and the judicial authority restricting or depriving the right of appeal of the defendant in a disguised form shall be guaranteed by the judicial authority from two aspects: first instance and second instance. In order to regulate appeals and achieve the balance between fairness and efficiency, adjustments should be made from the legislative level: (1) for the cases appealed after a guilty plea and punishment acceptance, the courts of second instance should only review the cases appealed by the defendants; (2) for the cases to which the immediate judgment procedures are applicable, if the defendants appeal on the ground of unclear facts and insufficient evidence, the cases should be remanded for retrial and the judgment should be made according to law, which is not affected by the results of the original judgment.

In summary, the protection of the rights of the accused in the system of leniency for guilty pleas and punishment acceptance can be summarized as: pursuing a balance, ensuring two voluntariness, and strengthening the four rights. To pursue a balance is to pursue a dynamic balance between justice and efficiency; to ensure two voluntariness is to ensure voluntary guilty pleas and punishment acceptance; and to strengthen the four rights is to strengthen the right to choose procedures, the right to help from lawyers, the right to bail, and the right to relief.

Date of Award	10 Nov 2021
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Tianxiang HE (Supervisor)