[author]Xi Wei
[content]
On the Substantive Trial of Confession and Punishment Cases by the Court——
Based on the analysis of 226 cases of retrial and revision of judgements
Author* Xi Wei
Professor, School of Law, Anhui Normal University
Abstract：The court shall conduct substantive trial to the confession and punishment cases. 226 cases of retrial and revision of judgments reflect the formalization of the court review process, the overly lenient approach adopted by the court, and the lack of clarity in the court's determination procedure. The coordination of the relationship between court and procuratorate, the evolution of proof mode and the constraint of sentencing suggestions are the difficulties of substantive trial of guilty plea cases in the court, and there is also a risk of formalization. To realize the substantive trials of guilty plea cases, the court should implement the trial-centered litigation principle, clarify the key points of substantive trials in different procedures, fully protect the defendant’s right to defence, and implement the principle of separate examination of criminal facts and sentencing facts.
Keyword: leniency of guilty plea; the trial-centered system; sustantive trial: the right to defence；
1. Presentation of the problem
In 2018, China's Criminal Procedure Law was amended to formally establish the system of leniency in pleading guilty and accepting punishment. The entry of this system into the law is highly compatible with the reform direction of "simple and complicated" and the criminal policy of leniency and severity. Procuratorial authorities play a leading role in cases of guilty pleas and penalties, and, as stipulated in article 201 of the Criminal Procedure Law, the people's courts shall generally adopt the sentencing recommendations of the procuratorial authorities, except for special circumstances stipulated by law. On the "generally should be adopted" clause, the academic community around whether it will lead to conflict between the law and the prosecution has been a lot of discussion. From the perspective of the relationship between the law and the prosecution authority, the prosecutor's sentencing recommendations belong to the right to seek justice, even if the precise sentencing recommendations have not been separated from the scope of the right to seek justice, the court still enjoys the right to decide on sentencing. Plea leniency and trial-centered in the system design and value concept is not in conflict, the power entanglement between law and prosecution is not irreconcilable. In this sense, the dominant position of the procuratorial authorities in the pre-trial proceedings through the system of leniency in plea bargaining cannot affect the court's independent exercise of the right to trial. The court should not neglect the substantive hearing of the plea bargain case because the defendant has already pleaded guilty and accepted the punishment and the court proceedings have been simplified. On the contrary, the court should do a better job of reviewing the factual basis and evidence of the guilty plea case, the voluntariness, truthfulness and legality of the defendant's plea of guilty and the appropriateness of the prosecuting authority's recommendation on sentencing, so as to prevent the emergence of problems such as forced guilty pleas, false guilty pleas, procedural violations and imbalances in sentencing. "Efficiency is subordinate to justice" "Efficiency without regard to justice and effectiveness is inefficiency or even negative efficiency", therefore, the court's substantive hearing of the confession and punishment cases is the pursuit of procedural justice and adjudicative effectiveness, and if it is unambiguously in favor of efficiency and neglects the substantive hearing of the confession and punishment cases, it will appear to be the most efficient way to handle the confession and punishment cases. If we focus on efficiency and ignore the substance of the plea and punishment case, the court hearing that seems to comply with the procedure does not solve the problem effectively, and the result naturally fails to realize the goal of letting the people feel fairness and justice in each and every judicial case.
Deepening the reform of the trial-centered litigation system cannot be separated from the substance of the trial, that is, to ensure that the trial plays a decisive role in the investigation of the facts, the identification of evidence, the protection of the right to appeal, and the impartiality of the decision. In the author's view, the confession and punishment cases also need to realize the substance of the trial, the court should be from the admission of evidence, factual findings, conviction and sentence, procedural operations, the participation of all parties and the proposal of reasoning and other aspects of a comprehensive and substantive review. Regrettably, however, the court's substantive review of guilty plea cases has yet to be upgraded, which is mainly reflected in the fact that the court's review of factual determinations in guilty plea cases prosecuted by the procuratorial authorities is mostly based on a confirmation of factual determinations, which shows the phenomenon of "guilty plea and punishment only". In other words, if the defendant in the pre-trial proceedings with the prosecution authorities have reached a plea of guilty, signed a plea agreement, the judge simply ask the defendant whether the voluntary plea of guilty can be confirmed on the facts and evidence prosecuted by the prosecuting authorities, to a certain extent, ignored the substantive review of the elements of the crime. Zhou moumou drug trafficking case, for example, the defendant pleaded guilty in the first trial, the court will be in the defendant Zhou moumou drug trafficking in specific quantities can not be ascertained under the circumstances, the adoption of the prosecution's recommendation of the sentencing, concluded that its many times to a number of drug addicts selling heroin facts are clear, the evidence is true, the conclusion of the full, and "drug trafficking no matter how much should be investigated for criminal responsibility" for the reason of the sentence. Sentenced Zhou Moumou to 8 months imprisonment, and a fine of 2000 yuan for "drug trafficking regardless of the quantity should be held criminally responsible". Subsequently, the higher-level procuratorial authorities filed a protest against the case in accordance with the law. The court of retrial, after ascertaining the amount of drugs involved in the case, sentenced Zhou Moumou to three years' imprisonment in accordance with the law. In practice, this case is not an exception. In view of this, this paper, on the basis of the empirical study of the retrial and re-sentencing cases, analyzes the dilemmas and obstacles of the court's substantive trial of the plea cases, discusses the reasons for the retrial and re-sentencing of the plea cases, and tries to provide useful ideas for the substantive trial of the plea cases in an attempt to explore its contingency in the framework of the deepening of the reform of the litigation system which is centered on the trial.
2. Status of substantive hearings in guilty plea cases
Although the efficiency value of the lenient plea system is highly compatible with the current judicial situation in China, where there are too many cases and too few adjudicators, criminal proceedings cannot be conducted in the sole pursuit of efficiency at the expense of justice. At present, in China's lenient plea system, the procuratorial organ takes the dominant position, "prosecutor justice" phenomenon is becoming increasingly common, in practice, the possibility of the prosecutors' abusing power to threaten, entice, deceive the pursued person to choose to plead guilty is greatly increasing. In the author's view, the most effective solution to the above problem is for the courts to hear cases of guilty pleas and penalties on the substance. Article 201 of the Criminal Procedure Law clearly stipulates the key elements of the court's substantive review of guilty plea cases. Specifically, in terms of conviction, the court shall focus on examining the voluntariness of the defendant's attitude towards the plea, the truthfulness of the content of the plea and the legality of the plea, without artificially lowering the standard of proof; and in terms of sentencing, the court shall examine the reasonableness of the procuratorial organ's sentencing recommendations in the context of the indictment and the evidence in the case, and shall reject any sentencing recommendations that are clearly inappropriate and hand down a judgement in accordance with the law.
At present, the empirical research on the status of court hearings in the academic community focuses on cases with significant social impact, while few scholars have carried out empirical analyses on the status of court hearings in cases of guilty pleas and penalties. For this reason, with the help of China Judgment Online, the author combed the judgements of guilty plea and punishment re-trial and re-sentencing cases uploaded by provincial and municipal courts nationwide, in order to clarify the real status of the court's trial of guilty plea and punishment cases. In the selection of judgments, on 29 June 2023, the author chose advanced search on the home page of the China Judgment Online, selected "criminal cases" for case type, "judgments" for instrument type, "all" for court level, "Trial Supervision Procedure" for proceeding, and enter "Guilty Plea" as the keyword, China Judgment Online showed a total of 632 cases in which pleas and penalties were entered under the trial supervision procedure. The author has manually collated these 632 criminal judgements and found that, after the defendant in the first instance pleaded guilty and accepted the penalty, the court initiated a total of 571 retrials in accordance with the trial supervision procedure, which were further divided into cases involving errors in the application of the law, errors in the determination of facts in the conviction and errors in the determination of facts in the sentence, the distribution of which is as follows (see table 1):
Table 1: Types of cases in which guilty pleas were retried and re-sentenced and the reasons for them
|
Types of cases |
Reasons for retrial |
Number of cases |
Total |
|
Cases involving errors in the application of the law |
Errors in the sentence |
332 |
345 |
|
Errors in the retroactivity of criminal law |
5 |
||
|
Procedural offence |
5 |
||
|
Erroneous judgement in collateral civil action |
3 |
||
|
Cases involving errors in the determination of facts in the conviction |
Omission of incriminating facts |
16 |
73 |
|
Errors in the determination of facts in the conviction |
26 |
||
|
Misidentification |
14 |
||
|
Qualitative error |
17 |
||
|
Cases involving errors in the determination of facts in the sentence |
Erroneous finding of remorse |
26 |
153 |
|
Erroneous finding of the circumstances of the offence |
15 |
||
|
Erroneous determination of sentencing related identity information |
105 |
||
|
Neglect of exceptional circumstances |
7 |
First, there were 345 cases of simple errors in the application of the law. Of these, 332 cases involved retrial and revision of judgement due to inappropriate sentencing at the original trial, including cases where the sentence was clearly inappropriate, where probation should or should not have been applied, and where the sentence was imposed in violation of the law. In addition, there were five cases due to problems with the retroactivity of the criminal law, five cases due to procedural irregularities in the original trial, and three due to errors in judgements in collateral civil actions. In such cases, all the facts of the case had been ascertained by the court of first instance, the evidence was solid and sufficient, and the judgement was changed in retrial solely because the sentence was inappropriate or in violation of the law, thus making such cases of limited reference value for this paper.
Secondly, there were 73 cases in which the facts of the offence were found to be incorrect. In these cases, the original court made unclear or erroneous determinations of the main facts of the offence, including 16 cases in which the facts of the conviction were omitted, i.e., the trial court continued to make a decision without ascertaining the facts of the case that were relevant to the composition of the offence; 26 cases in which the facts of the conviction were incorrectly determined, i.e., the trial court was wrong in determining the facts of the conviction; 14 cases in which the defendant pleaded guilty to a crime by substituting for another person or using another person's name; and 17 cases of mischaracterisation, in which the trial court's characterisation of the case as a whole was incorrect, and the retrial court changed the defendant's charge or acquitted the defendant in accordance with the law after a full trial.
Third, there were 153 cases in which the sentencing facts were incorrectly determined. In such cases, the trial court's determination of the facts of the offence was not in error, but the failure to identify the relevant sentencing facts resulted in a sentence that was clearly inappropriate, and the judgement was therefore changed on retrial. Specifically, there were 26 cases of error in the determination of remorseful circumstances, in which the trial court incorrectly determined whether the defendant had remorseful circumstances such as surrender or restitution, resulting in an inappropriate sentence; 15 cases of error in the determination of the circumstances of the offence, in which the trial court made no error in the determination of the facts of the case, but failed to incorporate specific circumstances into the sentencing facts, resulting in an inappropriate sentence; and 105 cases in which the trial court omitted or mistakenly considered that the defendant had committed an intentional crime, was a recidivist, was on probation, or had a sentence that had not yet been served, resulting in an inappropriate sentence; and 7 cases in which the trial court failed to take into account special circumstances, such as the defendant's being gravely ill or being the sole guardian of a child, which made it difficult to carry out the original sentence, and therefore the retrial court altered the original sentence according to the retrial procedure.
2.1 Formalisation of the court review process
Defendants' pleas of guilt and acceptance of punishment shall be voluntary and lawful, which is an inevitable requirement of the state to ensure the prosecuted's right to choose procedures, and is also the foundation of the plea leniency system. Paragraph 1 of Article 201 of the Criminal Procedure Law stipulates five circumstances in which a court refuses to accept a sentencing recommendation from a procuratorate: 1. The defendant's conduct does not constitute a crime or should not be pursued for criminal responsibility; 2. The defendant admits guilt and accepts punishment against his will; 3. The defendant denies the facts of the crime as charged; 4. The charges charged in the prosecution are inconsistent with the charges determined at trial; and 5. Other circumstances that may affect the fairness of the trial. Points 1 and 4 of these relate to the determination of the substantive trial of the case, which is a review of the legality of the content of the plea; Points 2, 3, and 5 require the adjudication organ to conduct a review of the voluntariness of the plea. In addition, article 39 of the "Guiding Opinions on the Application of the Plea Leniency System" (hereinafter referred to as the "Guiding Opinions") issued by the Supreme People's Court and the Supreme People's Court and the Three Ministries in 2019 makes detailed provisions on the content of the court's review of the voluntariness and legality of pleas: first, it is to review whether the defendant has admitted guilt and acceptance of punishment against his will due to violence, threats, or inducements; The second is to review whether the defendant's cognitive ability and mental state were normal when he pleaded guilty and accepted punishment; The third is to review whether the defendant understands the nature of admitting guilt and accepting punishment and the legal consequences that may result; Fourth, review whether the people's procuratorate and public security organs have fulfilled their obligation to inform and hear opinions; Fifth, review whether the duty lawyer or defender communicated with the people's procuratorate, provided effective legal assistance or defense, and was present to witness the signing of the plea affidavit.
Looking at judicial practice, there is a trend of formalization in the court's review of the voluntariness and legality of the defendant's admission of guilt and acceptance of punishment, and the original trial court simply inferred that the defendant voluntarily pleaded guilty and accepted punishment based on statements such as "the defendant has no objection to the facts, charges and sentencing recommendation of the public prosecution organ and signed an affidavit" and "there is no objection during the course of the trial". In other words, as long as the defendant signs the plea affidavit and does not raise objections in court, it can be proved that the plea is voluntary and lawful. There is a cognitive error in this judgment logic. On the one hand, the procuratorate has a great leading effect on the opening of the plea procedure, and the procuratorate can take the initiative to intervene and urge the prosecuted person to admit guilt and accept punishment during the investigation stage, so the prosecuted person may choose to make an affidavit when he is not clear about the plea leniency system and the corresponding consequences, and the duty lawyer can only provide him with limited assistance. On the other hand, according to article 201 of the Criminal Procedure Law, if the defendant denies the facts of the crime listed in the affidavit at trial, he will no longer be deemed to have pleaded guilty and accepted punishment.
Although article 173 of the Criminal Procedure Law explicitly requires the procuratorate to hear and record the opinions of the criminal suspect who admits guilt and accepts punishment and his defender or duty lawyer, victim and his agent ad litem on the facts of the case, the charges charged, the recommendation for lenient punishment and the application of procedures, etc., when reviewing the prosecution for prosecution, it does not also require the procuratorate to transfer these records to the court when initiating a public prosecution. The court has no way of knowing how the prosecution and defense reached an agreement, and there is every possibility that the defendant will make a persistent guilty confession due to coercion and inability to recognize the consequences of his actions. For example, in the case of Ren XX's illegal felling and destruction of national key protected plants, in the first instance, Ren XX had no objection to the fact that he had destroyed the national first-class protected plant "Taxus chinensis" as accused by the procuratorate, and "voluntarily" pleaded guilty and accepted punishment. After the execution of the criminal punishment was completed, Ren Moumou found that the plant involved in the case was not a "yew", so he raised an objection to the original trial court, and the original trial court retried the case with trial supervision procedures, and the retrial ruled that the defendant Ren Moumou was not guilty. This kind of "no objection to the facts alleged by the public prosecution" is by no means a voluntary admission of guilt and acceptance of punishment in the true sense, and it is more inclined to admit guilt and accept punishment under policy pressure.
2.2The court's adoption method is over slack
Article 55 of the Criminal Procedure Law stipulates that in all cases, emphasis should be placed on evidence, investigation and research, and confessions should not be easily believed. The following conditions shall be met when the evidence is credible and sufficient: 1. The facts of the conviction and sentencing are all supported by evidence; 2. The evidence on which the verdict is based has been verified and verified through legally-prescribed procedures; 3. The evidence in the case is comprehensive, and reasonable doubt has been eliminated as to the facts ascertained. In short, the court may convict the defendant in any case only when the evidence meets the standard of certainty and sufficiency and the facts ascertained have been beyond reasonable doubt. However, in judicial practice, the court's review and acceptance of evidence in plea cases does not all meet the standard of certainty and sufficiency.
As mentioned above, the author only analyzes the original judgments of 73 cases of erroneous determination of facts of conviction and 153 cases of erroneous determination of sentencing facts, a total of 226 cases of erroneous determination of facts (see Table 2).
Among the retrial judgments collected by the author, 75 of the original judgments of the original trial have not been uploaded to the China Judgment Network, and the methods of admissibility of evidence in the remaining original judgments can be summarized into three categories: probative enumeration, that is, the use of a combination of evidence and proof to determine the facts to be proved, such as the expression "the testimony of a certain witness used to prove when and where the defendant committed a certain act" used in the judgment is a probative enumeration; Non-probative enumeration, that is, a simple enumeration of the evidence involved in the case without separately explaining the probative purpose of the evidence, such as the expression "the above-mentioned facts are confirmed by the defendant's confession, witness testimony, photos of the tools used in the crime, on-site inspection records and photos, seizure lists, identification records and photos, household registration certificates, explanations from the judicial bureau, the process of solving the case, and other relevant evidence, which are sufficient to determine" in the judgment, is a non-probative enumeration; Not enumerated, that is, the original judgment did not enumerate the evidence involved in the case.
Specifically, in terms of different procedures, the original trial court applied the ordinary procedures in a total of 54 cases, of which only 11 judgments enumerated in detail the evidence admitted in the case and the purpose of proof, 40 judgments only briefly listed the evidence involved in the case or only described the statutory types of evidence involved in the case, and 3 judgments did not enumerate the evidence involved in the case. This mode of reasoning that separates the fact-finding activity from the evidence admission activity dilutes the probative power of the evidence. In the non-probative enumeration, the judgment documents only list the evidence involved in the case in a collective manner, making it impossible to achieve a one-to-one correspondence between the facts of the case and the evidence, and the determination of the facts of some cases is not supported by evidence, the standard of proof has been lowered, and there is a formalization phenomenon in the trial. For example, in the case of theft by Dai XX, although the ordinary procedures were applied in the first instance, the judgment only relied on "the victim's statement, the on-site inspection records, photos, video materials, the arrest process, the confessions of the defendant and his co-defendants, and the conclusion of the price determination" to conclude that the defendant was guilty. Later, through the trial supervision procedures, it was ascertained that the defendant in the original trial had indeed not stolen such an amount, and the sentence in the first instance was excessive due to an erroneous determination of facts. If the defendant has no objection to the facts alleged by the public prosecution, the judge can determine that the defendant has committed the relevant criminal acts without conducting a substantive trial on the other constituent elements of the establishment of the crime, that is, in the judge's trial thinking, there is a potential equivalent judgment logic between the defendant's admission of guilt and acceptance of punishment and the facts alleged by the procuratorate, and the court will no longer conduct substantive review.
In view of the summary and expedited procedures, the provisions of the Criminal Procedure Law on the simplification of the procedures of the two have also simplified the relevant judgments. In the factual error cases, the original trial court applied the summary procedures in a total of 60 cases, of which the original judgment in 51 cases simply listed and explained the evidence involved in the case, but in 9 cases, the evidence involved in the case was not listed in the judgment. Affected by the legislative expression that "no court investigation is generally conducted", of the 37 cases in which the expedited procedures were applied in the original trial, only 3 judgments simply listed the evidence involved in the cases, and the rest of the judgments did not cite relevant evidence. Although the legislation stipulates that there is no need to conduct a court investigation in the expedited procedure, the court investigation of the summary procedure is an indispensable link, and this judicial model of making a judgment in accordance with the procuratorial recommendation once the parties have made an agreement in court makes the trial a mere formality, which violates the requirements of the trial-centered principle. To sum up, in the trial of plea cases, the court's review and acceptance of evidence is mainly based on non-evidentiary enumeration, and it is difficult to fully implement the principle of direct speech in the trial, and the phenomenon of formalization of the trial is more prominent.
Table 2 Methods of the court's acceptance of evidence in plea cases
|
|
Probative enumeration |
Non-evident enumeration |
Not listed |
total |
|
Ordinary procedure |
11 |
40 |
3 |
54 |
|
Simplified procedure |
0 |
51 |
9 |
60 |
|
Expedited Procedures |
0 |
3 |
34 |
37 |
|
total |
11 |
94 |
46 |
151 |
2.3The court's recognition procedure is not clear enough
According to the author's collection of retrial judgments, the problems of the court in identifying the identity of the defendant and the main criminal facts in the confession and punishment cases are prominent.
On the one hand, the standard of identity recognition has been lowered. Statistical data show that the phenomenon of the parties replacing others, using other people's names, or concealing their past intentional crimes is prominent. In the 226 cases with factual errors, there were 14 cases of identity recognition errors of the parties and 105 cases of identity information recognition errors related to sentencing, totaling 119, accounting for 52.6% of the total number of cases with factual errors and 20.8% of the retrial cases. Identity recognition error cases specifically include two confession and punishment cases by imposters and 12 cases of using other people's names. In the 14 original judgments, except for 3 that were not uploaded to the China Judgments Online, only 4 of the remaining 11 judgments cited evidence in the documents to prove the defendant's identity information, and the other 7 documents did not list any evidence related to the defendant's identity. It is worth noting that in the cases of Feng Moumou's fraud, Jiao Moumou's theft, Jiang Moumou's dangerous driving, and Zhang Moumou's dangerous driving, the original judgments did not list relevant evidence, but still concluded that the facts were clear and the evidence was reliable. The rationality of this judicial practice needs to be discussed.
On the other hand, the main criminal facts are recognized by review and confirmation. Statistical data show that there were 59 cases in which the original trial recognized the main criminal facts incorrectly, specifically including 17 cases of full case recognition errors, 16 cases of omission of conviction facts, and 26 cases of conviction fact recognition errors, accounting for 26.1% of the cases with factual errors and ranking second. The author further analyzed the original judgments from a legal perspective. The court's recognition of the facts of the case can be divided into two modes. The first mode is the substantive review type, in which the judge follows the logic of the public prosecution agency's allegations of criminal facts—evidence supporting the prosecution's opinion (proof-oriented listing or non-proof-oriented listing)—the defendant's defense and defense opinions—the court's recognition of criminal facts—the logical development of the judgment result. The ordinary procedure, the simplified procedure, and the summary procedure all involve this type of recognition mode. This recognition mode is relatively rigorous in terms of the logic of development, and the court's recognition of facts is mainly based on evidence. However, it is regrettable that in terms of evidence listing, the substantive review type still mainly adopts non-proof-oriented listing, and the trend of formalization of trial still exists. The second mode is the review and confirmation type, in which the judge recognizes the facts of the case according to the logic of the public prosecution agency's allegations of criminal facts and sentencing suggestions—the defendant has no objection to the allegations of criminal facts and sentencing suggestions—the court confirms. At this time, the judge's focus of reviewing the case is shifted from the facts of the case to the voluntary nature of the defendant's plea of guilty. As long as the defendant pleads guilty, the judge will confirm the facts of the case with the words "the public prosecution agency's allegations of criminal facts are correct, and this court confirms this". In addition, some judgments use the expression "the facts are clear and the evidence is reliable" to confirm. Compared with the substantive review type, the review and confirmation type of fact recognition may lead to a formal review of the trial. The court does not carry out any substantive review or recognition of the facts of the case. This practice is contrary to the provisions of the Criminal Procedure Law on the focus of substantive review of the confession and punishment cases, the proof standard that cases should follow, and the direct speech principle set up to achieve procedural justice.
3.The difficulties and causes of substantive review in the confession and punishment cases
In recent years, with the gradual abolition of administrative control measures such as the labor education system, many behaviors that should have been regulated by administrative law have been included in the criminal law, and the threshold of criminal punishment has been further advanced. China's criminal law legislation has shifted from conservative traditionalism to activism and functionalism, and criminal law actively participates in social governance through a tight legal net. One of the impacts of the change in the legislative perspective is the continuous increase in the number of criminal cases. According to the judicial statistics data of the Supreme People's Court Gazette, the number of criminal first-instance cases in China was 971,567 in 2013, and reached 1,294,377 in 2017, an increase of about 33.2%. Judicial resources are further in short supply. To alleviate this problem, China began to try to build a "streamlined" judicial system. In 2018, the leniency system for guilty pleas came into being. It plays an important role in promoting social harmony and stability, timely and effective punishment of crimes, improving the efficiency of criminal proceedings and protecting the rights of the parties.
The incorporation of the leniency system for guilty pleas in China has changed the traditional litigation structure model in China, and the leading role of the procuratorate in litigation has been highlighted. However, since this system was incorporated into the legislation after the state summarized the experience of pilot work in some areas, and then required it to be promoted and implemented in the whole country from top to bottom, some areas of law and prosecution have no relevant experience to draw on. The leading role of the procuratorate has also brought many problems to the judiciary, as follows.
3.1Coordination of the relationship between the prosecution and the judiciary
Based on Article 14 of the International Covenant on Civil and Political Rights, any person charged with a criminal offense has the right to a fair trial by a court, and the court shall conduct a substantive review of the case in a neutral role. This provision indicates that a fair trial is a right, not an obligation, of citizens. Therefore, citizens can also voluntarily waive this right and choose a more convenient procedure to obtain substantive leniency. In practice, the law should give citizens full procedural choice, including the right to choose a simplified procedure and the right to withdraw from a simplified procedure after choosing it. This is a necessary requirement to protect citizens' right to a fair trial.
In the case of the the confession and punishment procedure in China, the prosecution plays a leading role in the initiation of the the confession and punishment procedure and the choice of the trial procedure, due to the influence of the adversarial system.
On the one hand, although the initiation of the the confession and punishment from leniency procedure in China is subject to the consent of the accused, in practice, this precondition seems to be affected by the public power of the prosecution, and cases in which the prosecution initiates the the confession and punishment procedure by its own authority often exist. For example, in the guiding case of Feng Moumou's theft of forest trees published by the Supreme People's Procuratorate, the procuratorate intervened in the case in the investigation stage, and persuaded Feng Moumou to plead guilty and confess. In the pre-trial stage, the parties' procedural rights cannot compete with the prosecution, so the prosecution's leading role in the initiation of the the confession and punishment procedure is more significant than the legislative statement.
On the other hand, except for special circumstances stipulated by law, the initiation of the the confession and punishment procedure in the pre-trial stage is subject to the precondition that the accused and the prosecution sign a the confession and punishment agreement. The prosecution has the right to decide whether or not to sign the the confession and punishment agreement. Even if the criminal suspect expresses his or her intention to plead guilty, if he or she does not fully recognize the facts and charges alleged by the prosecution, or if the prosecution considers other factors, the the confession and punishment procedure in the pre-trial stage will not be applicable, and the criminal suspect will not have corresponding remedies. For example, in the case of Yin Moumou's theft, the defendant claimed that he had only committed the act of destroying others' property, and the theft was committed by someone else. He had the intention to plead guilty and confessed in court, but because he could not reach an agreement with the prosecution, the court refused to apply the the confession and punishment from leniency system on the grounds that "Yin Moumou did not truthfully confess his crime", and finally sentenced the defendant to two years and three months in prison for theft, with a fine of one million yuan. Later, it was found through the judicial supervision procedure that the theft was not committed by Yin Moumou. The court changed the charge to intentional damage to property and applied the the confession and punishment from leniency system, and sentenced the defendant to two years and two months in prison.
In addition, Article 6 of the "Guiding Opinions" stipulates that if a criminal suspect or defendant commits multiple crimes and only truthfully confesses the facts of one crime or part of the crime, the whole case shall not be applicable to the the confession and punishment from leniency system. This provision further enhances the effectiveness of the prosecution. In the face of multiple crimes charged by the prosecution, even if the accused did not commit some of the acts, he or she must admit all the crimes to have the opportunity to obtain leniency under the the confession and punishment system. If the accused pleads guilty and confesses to only part of the acts, according to this provision, the the confession and punishment system cannot be applied to him or her. Even if the court subsequently determines that the accused did not commit other acts, there is no space for the application of the the confession and punishment system. Therefore, the pre-trial activities of the prosecution have a major impact on the initiation of the the confession and punishment procedure.
In the case of plea bargaining, the prosecution shall comprehensively consider the evidence situation of the case, the possible sentence of the criminal suspect, and the size of the dispute in the case, and choose one of the ordinary procedure, simplified procedure, or summary procedure to apply. For cases that meet the requirements for applying the simplified or summary procedure, the prosecution may recommend the application of the procedure to the court after obtaining the consent of the accused, and record it in the the confession and punishment agreement. At the same time, except for cases clearly stipulated by law, the court cannot refuse to apply the procedure. In other words, the procedural agreement between the prosecution and the defense also has certain binding force on the court.
3.2 The evolution of the proof model
Although Article 201 of the Criminal Procedure Law of the People's Republic of China stipulates that the court should still adhere to substantive review of the confession and punishment cases, it is undeniable that formalism is prevalent in judicial practice in the review of the voluntariness of plea bargaining, the acceptance of evidence in the whole case, and the determination of facts. The combined effect of the prosecution-led pre-trial procedure and the formalization of the trial has led to a significant "prosecution-centered" and "prosecutor's justice" phenomenon in China's confession and punishment cases. In the context of the expanding social governance function of criminal justice, litigation is exploding, and the formal procedure is precise and complex. At this time, "prosecutor's justice" came into being and has many meanings. This judicial style can meet the litigation needs of the prosecution, defense, and judiciary in practice. The efficiency of litigation has been greatly improved, but the case may be difficult to be dealt with fairly.
In the confession and punishment cases, the prosecution plays a leading role in the choice of procedure. In different procedures, the judicial proof model is also different. In the traditional proof theory of China, criminal proof can be divided into two levels: the criminal facts charged by the prosecution and the sentencing circumstances proposed by the prosecution are all in the strict proof category, while the sentencing circumstances proposed by the defendant and various procedural disputes are subject to free proof. However, in the confession and punishment cases, especially those tried by simplified procedures and summary procedures, the proof model presents a new form. Article 219 and 224 of the Criminal Procedure Law of the People's Republic of China stipulate that in criminal cases tried by simplified procedures and summary procedures, the court trial is not subject to the restrictions of interrogation, questioning, production of evidence, court investigation, and court debate. Some court examination and trial procedures can be simplified. This institutional arrangement of simplified proof may bring about many problems. On the one hand, evidence that needs to be supplemented or reasonably explained according to the law or judicial interpretation in the ordinary procedure may be directly used as the basis for judgment in the confession and punishment cases due to the exercise of the defendant's evidence qualification power or the failure to argue against the qualification of evidence. On the other hand, the prosecution can choose the procedural that is favorable to its own proof activities based on its own litigation advantages, and use simplified procedures and summary procedures to evade the obligation to supplement or explain defective evidence. The defendant will not raise any objections in the trial because he or she wants to obtain a lenient sentence. Although this practice greatly reduces the prosecution's burden of proof, it fundamentally violates the requirements of procedural justice, and is also very likely to cause false and wrongful cases in practice.
The object of criminal proof refers to the case facts that the party making the litigation claim needs to prove to establish the claim, including criminal facts, sentencing circumstances, and procedural disputes. In the confession and punishment cases, the prosecution and defense must sign the "the confession and punishment Agreement" before they can initiate the subsequent procedures. The signing of the agreement also means that the prosecution and defense have reached an agreement on the criminal facts, sentencing circumstances, procedural facts, sentencing recommendations, and procedural selection. This agreement will also be reflected in the prosecution's indictment. In the judicial environment where the authenticity of the the confession and punishment agreement cannot be guaranteed, the prosecution may induce the criminal suspect to reach a fact agreement that is beneficial to its own litigation activities and list it in the agreement in the absence of sufficient evidence. According to the principles of "no prosecution, no trial" and "separation of prosecution and trial," the court can only hear and adjudicate matters within the scope of the prosecution initiated by the prosecution. At the same time, for the prosecution and defense, both parties can only provide evidence and cross-examine on matters within the scope of the indictment. Proof activities beyond the scope are not allowed as a basis for judgment. The prosecution's dominant effect on the object of criminal proof extends to the prosecution and defense. The People's Court can only suggest that the prosecution change or add the content of the prosecution in the trial activities, and if the prosecution does not change or add, it can only adjudicate the matters within the scope of the prosecution.
3.3The constraints of sentencing suggestions
The leniency system for guilty pleas is designed to provide leniency to the accused, and the core of leniency is sentencing. Article 201 of the Criminal Procedure Law of the People's Republic of China stipulates that, except for special circumstances stipulated by law, the People's Court shall generally adopt the sentencing suggestions of the People's Procuratorate. At the same time, Article 33 of the "Guiding Opinions" stipulates that "in handling the confession and punishment cases, the People's Procuratorate shall generally propose a determinate sentence. For new types, uncommon crime cases, heavy crime cases with complex sentencing circumstances, etc., it can also propose a range of sentence suggestions." In addition, the Supreme People's Procuratorate issued the "Guiding Opinions on the People's Procuratorate's Work of Formulating Sentencing Suggestions in Handling the confession and punishment cases", Article 36 of which stipulates that "if the People's Court violates the provisions of Article 201, paragraph 2 of the Criminal Procedure Law, and does not notify the People's Procuratorate to adjust the sentencing suggestions before making a judgment, the People's Procuratorate shall generally appeal on the grounds of violating the statutory procedure." The "generally shall" in the above normative documents indicates that the court should adopt the accurate sentencing suggestions as a principle and not adopt them as an exception when there are special circumstances. The court should have a reasonable tolerance obligation for the sentencing suggestions proposed by the People's Procuratorate. If it does not adopt them, it should first suggest that the People's Procuratorate adjust them. It is a procedural violation to directly make a judgment without suggesting an adjustment. The People's procuratorate can exercise its right of appeal to correct this. At this point, the accurate sentencing suggestions proposed by the People's Procuratorate have pre-trial pre-determination effect and have substantive constraints on the trial work. The right to seek a sentence breaks through the procedural nature and has the characteristics of substantive power. This is the due respect for the consensus of the prosecution and defense by the state, and it is also the key to the expansion of the implementation of the leniency system for guilty pleas. However, this sentencing model makes the litigation structure appear "prosecution-centered" and to a certain extent suppresses the function of judicial centralism. It makes the court's substantive review of the confession and punishment cases subject to the constraints of sentencing suggestions.
The People's Procuratorate has a significant leading role in the initiation, selection of the plea bargaining procedure, the selection of the object of criminal proof, and the substantive sentencing. Its accurate sentencing suggestions even have the effect of "pre-determination". The court's focus of review of the case is also limited to the voluntariness and legality of the accused's plea of guilty and confession. This is the "prosecutor's justice" under the "prosecution-centered" system in China. In practice, there is a possibility of abuse of the public prosecution function of the People's Procuratorate due to the lack of supervision of the judicial function. Judicial efficiency and risk coexist in prosecutorial justice. According to the data released by the Supreme People's Court, there were 1,431,585 criminal cases involving 1431,585 people in China in 2022, of which 631 were acquitted. The acquittal rate was only 0.04%, which means that once the case enters the trial stage, the accused can hardly avoid criminal punishment. Based on the human tendency to avoid harm, the accused who wants to obtain substantive leniency can obtain the most effective and convenient path through pleading guilty and confession. However, the tendency of the accused to avoid harm can also be exploited by public power agencies, and a series of problems will arise.
Regarding the accused, the law does not grant the accused sufficient procedural rights to constrain the state's public authority, other than limited assistance from a duty lawyer. As a result, the accused's "voluntariness" and "truthfulness" of confession is difficult to guarantee. Regarding the investigative authorities, the plea bargaining leniency system provides a new way for them to obtain the guilty confessions of criminal suspects. In practice, investigators may promise leniency in sentencing in order to encourage criminal suspects to confess as soon as possible, which greatly increases the risk of "inducing confessions." They may also lower their own work standards because of the accused's confession, which may lead to wrongful convictions. Regarding the prosecution, even if the criminal suspect makes a guilty confession based on the investigator's sentencing promise, the prosecution is not obligated to recognize this promise. In addition, the prosecution may, based on its own litigation advantage, autonomously choose litigation procedures that are beneficial to its own litigation activities, avoid evidence disputes and proof difficulties, and indirectly lower the standard of proof for the case. In response to the risk of "prosecutor's justice" mentioned above, since the Criminal Procedure Law stipulates that "accurate sentencing suggestions should generally be adopted," if the trial organs adopt a formal review model in the trial of plea bargaining cases, especially in the review and confirmation model adopted in the identification of major criminal facts, the abuse of power by the prosecution will inevitably affect the substantive sentencing and affect judicial justice. In order to uphold judicial justice and credibility, punish crime promptly and accurately, and safeguard human rights, it is indeed necessary for the court to conduct substantive review of the confession and punishment cases.
4.Prospects for the substantive review of the confession and punishment cases
The trial of the confession and punishment cases should also adhere to the principle of "trial-centered", and the implementation of this principle should focus on improving the degree of substantiveization of the trial. As for the phenomena of "prosecution-centeredness" and "prosecutor's justice" in the judicial system, the root cause is that the Chinese legislation has not granted the accused sufficient litigation rights. Therefore, under the existing institutional framework, a moderate balance between the prosecution and defense can provide effective guarantees for the process of substantiveization of the trial. The process of bargaining between the prosecution and the defense is conducive to the discovery of objective truth by the judge.
In addition, the degree of controversy in the confession and punishment cases is relatively lower than that in other cases. Out of consideration for the value of "efficiency", judges should focus on the substantive review of these cases. They should distinguish between different review methods under different procedures, and pay more attention to sentencing facts. They should not rely on the prosecution's prosecution opinion, and maintain their own rational judgment.
4.1 Implementing the principle of adjudication-centered litigation
The 18th CPC Central Committee's Decision on Some Major Issues Concerning Comprehensively Promoting the Rule of Law for the New Era was the first to propose the reform of the litigation system centered on adjudication, to ensure that the facts and evidence of cases investigated and prosecuted can withstand legal scrutiny. The Decision also pointed out that "we should fully implement the principle of evidence-based adjudication, strictly collect, fix, preserve, review and apply evidence in accordance with the law, improve the system for the appearance of witnesses and experts, and ensure that the trial plays a decisive role in ascertaining the facts, identifying evidence, protecting procedural rights, and rendering just judgments." This is the state's interpretation of the content of the principle of adjudication-centered litigation, which requires that the trial play a prominent role in criminal litigation, and that courts should implement substantive trials in all cases, including cases where the accused has pleaded guilty and accepted a lighter sentence. Although the responsibility of the procuratorate is prominent in the confession and punishment cases, this does not diminish the implementation of the principle of adjudication-centered litigation in litigation.
First, from the perspective of the status of the two in criminal litigation, the principle of adjudication-centered litigation is a guiding principle that runs through criminal litigation. It conforms to the laws of litigation, judicial principles, and political laws, and is the only way to achieve fair justice and protect human rights. The principle of guilty plea leniency is also a basic principle of criminal litigation, as it is stipulated in the chapter on tasks and basic principles of the Criminal Procedure Law. Although both are basic principles of criminal litigation in China, the former involves the overall litigation relationship between the prosecution, the judiciary, and the defense, and has greater judicial guidance and universality. The latter is more biased towards the institutional design of specific cases. Therefore, the former should have a higher hierarchy of effectiveness. In general, the trial of the confession and punishment cases should be based on the principle of adjudication-centered litigation. Second, the leniency system for guilty pleas in criminal litigation are not incompatible with the principle of adjudication-centered litigation, which requires substantive trials. The difference between the confession and punishment cases and that of ordinary cases is that the judge should tolerate the sentencing recommendation to a certain extent. The sentencing recommendation is the result of the consensus of the prosecution and the defense, and the state should respect it. However, according to Article 201 of the Criminal Procedure Law, the court shall still conduct a substantive trial on the voluntary nature of the accused's guilty plea and acceptance of a lighter sentence, the offense involved, and the sentencing, and compare the conclusions of the judgment with the sentencing recommendation of the procuratorate. Only in the absence of special circumstances shall it be adopted in accordance with the law. This provision emphasizes that substantive trial is a necessary prerequisite for the adoption of accurate sentencing recommendations, and that the trial is still the core of the guilty plea procedure. Guilty plea leniency is an institutional arrangement under the guidance of the principle of adjudication-centered litigation. In addition, the legislative provisions on simplifying the trial in the simplified procedure and the fast-track procedure are based on the fact that there is no significant dispute over the facts of the case. However, simplification does not mean formal review. Simplification simply means that the focus of the judge's substantive review is on the reasons for and the authenticity of the case being "undisputed," the overall situation of the evidence, and the objective facts of the crime.
4.2 Clarifying the key points of substantive review under different procedural systems
In the confession and punishment cases, the procuratorate may, according to whether the facts of the case are disputed, the evidence situation of the case, the possible sentence of the parties, and the complexity of the case, choose one of the ordinary procedure, simplified procedure, or fast-track procedure to apply. The three procedures together constitute China's litigation system of streamlining.
In cases where the ordinary procedure is applied to the confession and punishment cases, the defendant's social harm is generally greater, or the facts and evidence of the case are disputed, and the case is relatively complex. At this time, the court should strictly implement substantive review to achieve fair justice. The key points of substantive review should include: Firstly, Fully play the role of pre-trial conferences. In pre-trial conferences, the prosecution and defense can express their opinions on procedural matters such as jurisdiction, disqualification, exclusion of illegal evidence, and appearance of witnesses, and they can also access each other's evidence materials. This helps to play the functions of evidence, cross-examination, and debate, and is an important guarantee for achieving procedural justice. In addition, in order to fully play the role of the trial in litigation, the court should adopt a formal review principle in pre-trial conferences, and relevant substantive issues should not be included in the discussion scope of the conference. Secondly, Implement the principle of direct testimony, strengthen the appearance of witnesses, and improve the rules for the exclusion of illegal evidence. Thirdly, Enrich the court investigation, focus on reviewing case disputes, pay attention to certification, evidence, and cross-examination, and strictly follow the statutory standard of proof for the determination of the facts of the case, so that the evidence is reliable and sufficient, and the evidence can be mutually corroborated, and the principle of doubt from innocence is upheld.
In cases where the simplified procedure or fast-track procedure is applied to the confession and punishment cases, the facts of the case are generally not disputed or disputed, and the social harm of the accused is relatively small. The legislation on simplified procedures and fast-track procedures is mainly based on the consideration of the value of "efficiency". At this time, if the court still conducts a substantive review of the case in the same way as the ordinary procedure, it lacks procedural support and violates the original intention of the legislation. Therefore, in cases tried under the simplified procedure and fast-track procedure, the court should conduct a substantive review with a focus. On the one hand, in terms of the way of trial, the court can adopt the way of pre-trial reading of files as the main and trial as the auxiliary. Because cases that apply to this type of procedure have no major disputes, and the litigation procedures of evidence, cross-examination, and presentation are simplified or even omitted, the effective information that the judge obtains in the trial is very limited. At this time, the most effective and convenient way for the judge to fully and comprehensively understand the facts of the case is to read the files. It is important to note that during the reading of the files, the judge still needs to maintain his or her own rational judgment, not to rely on the evidence materials submitted by the procuratorate. For the case doubts found in the reading of the files, the trial should focus on the review. On the other hand, in terms of fact determination, the court should eliminate the review and confirmation type of identification model, focus on evidence review in litigation, implement the principle of evidence-based judgment, and strictly follow the statutory standard of proof. As mentioned earlier, in the simplified procedure and fast-track procedure, the court's identification of the facts of the case is in the mode of review and confirmation. In this mode, the judge's determination of the facts is based on the standard of no objection from the accused rather than on evidence. The principle of evidence-based judgment has no basis, and it is very easy to cause wrongful cases, which is not desirable in litigation. The judge should be evidence-oriented and determine the facts based on evidence. The evidence should also be mutually corroborated, and the standard of proof should not be lowered due to the simplified trial procedure.
Regardless of the procedure applied, the court should conduct a substantive review of the voluntariness and truthfulness of the defendant's plea of guilty and punishment. In the U.S. plea bargaining, the judge in order to protect the defendant to fully exercise the right to procedural choice, the defense attorney is required to plead guilty before the client to conduct a full investigation of the case, study the circumstances of the case and the relevant laws, to find out whether there is any illegal evidence and the prosecution's behavior is in violation of procedural principles and other circumstances, and based on the results of the investigation predicts the trial process, and ultimately provide the defendant with a trial evaluation report, so that the client understand the consequences of pleading guilty to fully exercise the right to procedural options. Looking at our country's plea bargaining system, the duty lawyer neither enjoys the investigation authority of the case, nor will form the trial evaluation report for the party's reference, so the defendant can't really understand the consequences of plea bargaining, and it is difficult to guarantee the voluntariness of procedural choices. At present, the Criminal Procedure Law only establishes formal requirements for the voluntary review of guilty pleas and penalties, i.e., all defendants should sign a the confession and punishment agreement with the help of their defense attorney or duty counsel, and the voluntary review of the trial stage is mainly based on the voluntariness of the signing of the confession and punishment agreement.
Therefore, for substantive trial considerations, the court may adopt a combination of subjective and objective examination methods to ensure that the plea of guilty and punishment is voluntary and lawful. Specifically, on the subjective side, the judge should focus on whether the defendant's willingness to plead guilty and to accept the punishment is in line with the logical perception of the average person, whether his/her willingness to plead guilty and to accept the punishment is always firm, and whether the defendant himself/herself possesses an independent judgment on the plea and the punishment. If there is any doubt, the judge may question the defendant during the trial, with questions from a variety of perspectives, the scope of which may extend to the pre-trial stage, in order to comprehensively judge the voluntariness and legality of the guilty plea from a variety of perspectives. At the objective level, when examining whether the plea agreement complies with the statutory requirements, the judge may, if necessary, request the procuratorial authorities to provide relevant audio and video recordings, and at the same time combine this with the question of whether or not an agreement of understanding has been reached between the defendant and the victim, in order to provide objective evidence that the defendant's guilty plea is voluntary and lawful.
4.3 Adequately guarantee the right to defense of the accused
In the litigation structure of plea bargaining cases, the positions of the prosecution and the defense are imbalanced, and the leading responsibility of the prosecution is highlighted. At this time, the court needs to ensure that the defendant obtains effective defense and appropriately balance the prosecution and defense relations, so as to ensure that the case is reviewed in accordance with the principle of "trial-centered" to practice judicial justice. The premise of ensuring that criminal accused obtain effective defense is that the defense lawyer fully participates in the criminal procedure. Specifically, in the pretrial stage, since the factual disputes in the case are largely reduced as the prosecution and defense sides reach an agreement on the charges and sentencing in the investigation stage or the prosecution review stage, the focus of the litigation is shifted forward. In the pretrial stage, the duty lawyer can only provide limited assistance to the accused in terms of procedural selection advice, application for change of compulsory measures, and legal consultation. Therefore, the investigation agencies and the prosecution agencies need to promptly inform the accused to entrust the defense lawyer to participate in the litigation as soon as possible.
As for the defense lawyer, he/she should actively participate in the litigation and focus on doing the following work. First, explain the procedure and the consequences of the leniency system for guilty pleas in detail to the accused to ensure the voluntary and legality of his/her plea bargaining. Second, strive to discover the objective truth of the case and grasp the situation of case evidence, especially to find out whether the investigation agency has any illegal evidence collection behavior, and protect the legitimate rights and interests of the accused, laying a good foundation for the trial defense. Third, since the disputes between the prosecution and the defense in plea bargaining cases are generally small, and the personal danger of the accused is generally not great, at this time, the defense lawyer should pay more attention to procedural defense and timely terminate the litigation procedure. In the investigation stage, for the accused who are in custody, the defense lawyer can apply for change or release of compulsory measures according to the specific circumstances of the case. In the prosecution review stage, for cases that meet the statutory requirements, the defense lawyer can legally recommend the prosecution agency to make a decision not to prosecute. Fourth, listen to the demands of the accused and negotiate fully with the prosecution agency on the issue of sentencing, to seek the most ideal sentencing discount for him/her. Fifth, actively assist the accused in returning the money and property, and help him/her reach a reconciliation agreement with the victim.
In addition, there is a heated debate in the theoretical circles about whether the defense lawyer in guilty plea cases can conduct "independent defense", that is, whether the defense lawyer can make a defense opinion of innocence or less guilt in court after the accused pleads guilty. In this regard, the prosecution often takes a negative attitude. In the view of the prosecution, the negotiated basis of guilty plea is that the prosecution and the defense reach an agreement on the conviction and sentencing, and the defense opinion of innocence made by the defense lawyer breaks the basis of the agreement. At this time, it can be determined that the accused has not sincerely repented and is suspected of wasting judicial resources. In the practice of trial, the general attitude of the court towards independent defense is that independent defense does not affect the effectiveness of the accused's guilty plea, and the case should be tried in accordance with the ordinary procedure.
How to view the issue of independent defense? First, relevant legislation in China allows the existence of independent defense. Article 37 of the Criminal Procedure Law of the People's Republic of China stipulates that the responsibility of the defense lawyer is to present materials and opinions on the innocence, less guilt, or reduction or exemption of criminal liability of the criminal suspect or accused, and to protect the litigation rights and other legitimate rights and interests of the criminal suspect or accused. This provision indicates that the independent expression of defense opinions is the responsibility of the defense lawyer himself/herself, and its basis is facts and laws, which are unrelated to the subjective of the accused and are generally applicable to any case. Article 201 of the Criminal Procedure Law also stipulates that if the defendant or the defense lawyer raises objections to the sentencing recommendation, the People's Procuratorate may adjust the sentencing recommendation. This provision also does not stipulate that it is prohibited to raise the opinion of innocence. Second, according to Article 15 of the Criminal Procedure Law of the People's Republic of China, the only standard for judging whether the accused pleads guilty is whether the accused truthfully confesses his/her crime, admits the crime charged, and is willing to accept punishment. This is unrelated to the behavior of the defense lawyer. If the accused pleads guilty and does not take the initiative to deny the content of the confession in the court trial stage, objectively speaking, defendant's post-crime behavior and trial attitude have already demonstrated the value of his/her behavior of pleading guilty. At this time, it should not be denied the effectiveness of defendant's confession by the behavior of the defense lawyer. Finally, independent defense can maximize the substantive interests of defendant, and help to balance the prosecution and defense relations, so as to realize judicial justice. In judicial practice, the signing of a plea agreement by the party indicates that the party can obtain leniency on the substance. However, due to the prominent leading responsibility of the prosecution in the pretrial stage, the existing legislation cannot guarantee the voluntariness and legality of defendant's guilty plea. This type of "leniency" is more oriented towards efficiency value, and cannot meet the requirements of substantive justice. If the court allows the existence of independent defense, the prosecution and defense sides' defense on the issue of the party's guilt can help to reveal the problems hidden in the pretrial activities, urge the judge to approach the objective truth of the case, ensure the quality of the case, and prevent the occurrence of wrongful convictions. In conclusion, independent defense is not only feasible, but also necessary. The public security and judicial authorities should carefully consider this defense method, and should not regard efficiency as the primary value pursuit of judicial cases.
4.4 Separate review of the facts of conviction and sentencing
The criminal responsibility of the accused includes conviction and sentencing. Accordingly, the substantive review of guilty plea cases should also include the substantive review of the facts of conviction and the substantive review of the facts of sentencing. As mentioned above, in the 226 cases of factual errors collected by the author, 153 were retried and reversed through the judicial supervision procedure due to errors in the facts of sentencing, which accounted for a relatively high proportion. The author believes that the reason for this is that the Chinese criminal procedure tradition does not attach enough importance to the review of sentencing facts. The legislation has not established an independent sentencing procedure and link, which has led to the confusion of conviction and sentencing procedures. The investigative organs and the prosecution organs also have the suspicion of lowering their own working standards after the person in charge admits guilt and punishment.
Article 162, 171 and 200 of the Criminal Procedure Law of the People's Republic of China stipulate that the investigation, prosecution and conviction and sentencing of cases should all meet the standard of clear facts and sufficient evidence. In guilty plea cases, the prosecution and defense have reached an agreement on the facts and sentencing, and the case has no more basis for dispute. At this time, the prosecution and investigative organs are easy to ignore the fact that the sentencing facts of the case should also follow the standard of sufficient evidence. Therefore, in practice, the court should not only conduct a substantive review of the facts of conviction, but also conduct a substantive review of the facts related to sentencing, including: whether the accused is a recidivist, whether he has ever committed a premeditated crime, whether he has any unexecuted sentences, whether he is still under probation, whether he has ever received administrative punishment, whether the accused is physically ill or has other special circumstances, and whether the accused's behavior has aggravating or aggravating circumstances.
As for specific implementation path: First, China can try to construct an independent sentencing procedure, so that the conviction activities and sentencing activities are separated. The Criminal Procedure Law of the People's Republic of China provides a relatively general regulation on the sentencing procedure. Conviction and sentencing are characterized by integration, and the sentencing procedure is attached to the conviction procedure. This institutional arrangement greatly weakens the defense function. In the trial, the defense lawyer needs to carry out conviction defense and sentencing defense at the same time. Under the premise that the conviction issue has not been resolved, if the defense lawyer wants to make a not guilty defense, he needs to give up the relevant content of sentencing defense. This defense strategy is not advisable in the judicial environment where the acquittal rate is extremely low in China. Therefore, even if the defense lawyer adopts a not guilty defense in the conviction aspect in a guilty plea case, he is more inclined to adopt a less guilty defense in the sentencing aspect. The two conflicting defense opinions make it difficult for defense lawyers to fulfill the independent defense function in guilty plea cases. The construction of an independent sentencing procedure can effectively avoid the problem of defense conflict. At this time, the court first solves the conviction problem of the accused. The defense lawyer does not need to consider how the sentencing defense will affect the conviction problem, which indirectly strengthens the defense function, strengthens the confrontation between prosecution and defense, and is conducive to the court's discovery of objective truth. Second, the court should pay attention to the defense opinions expressed by the defense lawyer on sentencing, pay attention to the sentencing facts involved in the defense opinions, and apply the necessary reasoning for whether to adopt them in the judgment.
Third, the court's recognition of sentencing facts should also be carried out in accordance with the substantive review model of conviction fact recognition, and should not be replaced by formal review. In the above cases that were retried due to errors in the facts of sentencing, the original trial judges generally noticed the sentencing circumstances possessed by the accused and listed them in the judgment. Regrettably, due to the court's formal tendency to review evidence, the relevant evidence was not fully verified, resulting in errors in the recognition of sentencing facts.
In the choice of proof mode, for sentencing facts such as recidivism and previous convictions that are unfavorable to the accused, they should be carried out in accordance with the strict proof mode, and the relevant evidence must be verified to be true through legal procedures and meet the standard of sufficient evidence. For sentencing facts that are favorable to the accused, they can be carried out in accordance with free proof, and the standard of proof can be appropriately lowered, and the recognition of facts can reach a high degree of possibility. In addition, the judge can conduct out-of-court investigation when necessary. The evidence obtained from the investigation should also be cross-examined in court to be used as a basis for the case, but for non-key evidence that does not affect conviction and sentencing, sentencing evidence that is favorable to the accused, and sentencing evidence such as judgments that determine that the accused has a criminal record, they can be exempted from cross-examination after consultation outside the court if the prosecution and defense have no objections.