Abstract:

Since the comprehensive implementation of the system of leniency for admitting guilt and accepting punishment, the operation has been satisfactory overall. However, there have also emerged some representative issues. For instance, procuratorial organ lodges protests because court hasn’t adopted sentencing recommendations or notified sentencing adjustment recommendations; prosecutorial authorities use protests to deter defendants from appealing; and there are problems in the procedural arrangement of admitting guilt and accepting punishment during the trial stage. There are also differing views between court and procuratorial organ on these issues. These problems and the divergence in understanding are originated from the collision between the original litigation environment of official investigation and the dispute resolution-oriented institutional logic introduced by the leniency system for admitting guilt and accepting punishment. In the context of the revision of the Criminal Procedure Law, there are two solutions to mitigate or reduce these conflicts. First, we should design the negotiation as a fact-finding mechanism rather than a case disposition mechanism, which objectively requires the deletion of Article 201 of the Criminal Procedure Law stipulating that the people’s courts “should generally” adopt the sentencing recommendations of the people’s procuratorates. Second, we should limit the application of the negotiation mechanism to cases that may be sentenced to fixed-term imprisonment of not more than three years.

Key words: revision of the Criminal Procedure Law, leniency for admitting guilt and accepting punishment, sentencing recommendation, litigation of official investigation, litigation of dispute resolution