Plea bargaining system is a new criminal litigation model developed in the United States since the 20th century. After only half a century, the system has developed into the cornerstone of the American criminal procedure system. There is no plea bargaining in China's criminal procedure law, but some criminal legal systems and criminal policies in China undoubtedly contain the essence of plea bargaining. The objective requirement of judicial reform is to increase the application of plea bargaining. While reforming the summary procedure of criminal procedure in China, we can gradually establish a plea bargaining system with China characteristics. Plea bargaining in China should be standardized and institutionalized, and certain limits should be established in legislation according to the specific institutional background, so as to promote the benign operation of plea bargaining and improve the efficiency and benefit of criminal proceedings.

Keywords: feasibility of plea bargaining, establishment limit

Plea bargaining system is a new criminal litigation model developed in the United States since the 20th century. In recent years, the plea bargaining system has attracted the attention of Chinese academic circles, and has launched a fierce debate, with three views: affirmative, negative and slow. Scholars with positive views believe that plea bargaining greatly improves litigation efficiency, reduces litigation costs, fully respects the opinions of the parties, is conducive to the realization of judicial justice, and is also an objective need to solve the problems of extorting confessions by torture and extended detention in China's judicial circles. Scholars who hold a negative view believe that plea bargaining in China is unfounded in law, which is contrary to its earnest implementation. China does not have the living environment for plea bargaining now, which is not in line with China's national conditions. Third, wait and see, we can study and discuss plea bargaining now, and it will be better when the time is ripe. ①

Under the realistic background that the surge of criminal offences is called "litigation wave will flood the courts", litigation efficiency has become the focus of common concern of theoretical and practical departments. How to speed up case turnover, save limited judicial resources and improve litigation efficiency without violating the law and ensuring judicial justice has become an extremely urgent problem. Plea bargaining system has unique intrinsic value in improving litigation efficiency and saving judicial input. The introduction of plea bargaining system in China's criminal proceedings is of great theoretical and practical significance for China, which is relatively short of criminal judicial resources. The author believes that plea bargaining is a new thing for our country, which needs to be explored in practice and gradually pushed away. To establish the plea bargaining system in China, we must strictly restrict it in the process of reference, improve its norms, avoid its negative effects to the maximum extent, and promote the coordinated realization of multiple value goals in criminal proceedings.

First, the emergence and development of plea bargaining

Plea bargaining, also translated as plea bargaining, is a criminal justice system mainly applicable to American law. According to the authoritative American Law Dictionary, "Plea Bargaining refers to an agreement reached by the prosecutor and the defendant through negotiation in exchange for a concession by the prosecutor for a lesser charge or one or more of several charges." ②

From two aspects of theory and practical application, plea bargaining generally includes the following elements: first, the main body of the transaction is the prosecutor and the defendant (mainly through their plea lawyers); Second, the content of the transaction, as far as the prosecution is concerned, includes reducing the number of charges, reducing the number of charges, and proposing sentencing suggestions with lighter punishment. As far as defense is concerned, it is mainly a confession, that is, a confession. Third, as far as the prosecution is concerned, the benefits gained through the exchange are through the defendant's confession, which exempts the burden of proof in the trial and reduces the risk of losing the case; As far as defense is concerned, it is a lighter sentence or a mitigated criminal charge. Fourth, the form of the transaction is that the prosecution and the defense reach an agreement through consultation on a voluntary basis. Fifth, the consequence of the lawyer's transaction is that the case does not enter the formal trial, but the court confirms the plea agreement, directly convicts and punishes the defendant, and the proceedings end. It should be said that the essential feature of plea bargaining is that both the prosecution and the defense punish their substantive rights through reciprocal trading behavior.

Plea bargaining has a development process in the United States. /kloc-plea bargaining was in an "underground state" in the early or middle of the 0/9th century, but now in the United States, plea bargaining has occupied the main stage of criminal proceedings. In the United States, 90% of cases are solved through plea bargaining. Plea bargaining has many advantages, such as fast closing, high efficiency, helping to solve the serious backlog of cases and reducing the great pressure on the criminal justice system, and enabling the prosecution to convict the defendant even if the evidence is insufficient, so it has gained great vitality as soon as it came out. Take new york as an example. According to statistics, 1 18000 people were arrested for committing crimes in 1990. There are 54,000 people brought to court for serious crimes, accounting for 45.76%, less than half. Among the 54,000 people who brought a lawsuit to the court, 45,000 people settled by plea bargaining, accounting for 83.33%; 5,000 people withdrew their charges due to insufficient evidence, accounting for 9.26%; Only 4,000 people participated in the trial according to formal procedures, accounting for 7.4 1% of all cases. Although there are opponents in the United States who criticize the plea bargaining procedure, the plea bargaining system has quickly solved a large number of criminal cases and saved some judicial resources without increasing the number of judges and prosecutors, so it is very happy to be adopted by the judicial department. Britain, Canada, Germany, France, Italy, Spain, Israel, Pakistan, the Philippines and other countries also have different forms of plea bargaining in legislation or practice. But in contrast, the plea bargaining system in these countries is far less developed than that in the United States, and its scope of use is satin, blame and beer. BR> Second, the necessity of introducing plea bargaining system in China.

As can be seen from the annual work reports of the two houses, the courts and procuratorates in China are facing an unprecedented surge in cases. Taking the statistics of procuratorial organs as an example, in 200 1 year, the Supreme People's Procuratorate * * approved the arrest of 84 suspects1845, and prosecuted 845,306 people, up by 17.6% and 19.2% respectively over the previous year. In this case, it is not realistic or the fundamental way to solve the problem just by increasing judicial personnel and judicial input. It is undoubtedly a pragmatic attitude to deal with cases as soon as possible, resolve contradictions and enhance the dependence and trust of members of society on the judicial system by innovative litigation procedures. 1996 when amending the criminal procedure law, summary procedures were added and the proceedings for some minor crimes were simplified. The application of summary procedure has eased the pressure of procuratorial organs to send personnel to appear in court. For the court, the trial pressure has eased, but it has not yet played its due role. In addition to simple procedures, we should also design and innovate procedures and improve the system of quick cutting procedures. With the development of litigation practice, the reference of plea bargaining system has become a common concern of the legal and judicial departments in China. The practical part has also begun to explore, and last year there were even actual cases. The birth of the first plea bargaining case shows the vitality of the transplantation and application of the plea bargaining system in China, and also proves that the reformed plea bargaining system can fully serve the judicial practice in China. The author believes that the plea bargaining mechanism is worth learning, and it is necessary to introduce the plea bargaining mechanism in China. Of course, plea bargaining system can only be used as an auxiliary measure in China, and it can't occupy an important position in the system like the United States.

The author believes that the introduction of plea bargaining system in China is beneficial to both the prosecution and the defense, the court and even the society. Specifically:

First of all, it is conducive to improving the efficiency of litigation, closing the case as soon as possible, reducing the backlog of cases, solving the problem of protracted cases, reducing litigation costs and saving judicial resources. Its performance is that it will shorten the investigation period in the investigation stage; In the prosecution stage, it can reduce the pressure of procuratorial organs to appear in court and concentrate on handling other major criminal cases; In the trial stage, it will also greatly reduce the trial pressure of the court; The interests of the victims have been effectively safeguarded. In recent years, the number of criminal cases in China has increased year by year, and the burden on public security and judicial organs has obviously increased. In this case, it is inevitable to adopt fast and convenient litigation procedures. Judging from the current situation in our country, the funds of public security and judicial organs are far from meeting the needs of handling cases, and the investigation technology and even the overall investigation level are not high, and the phenomenon of long delay is very common.

Undoubtedly, the contradiction between the backlog of criminal cases and the limited judicial resources is an important reason for the emergence and rapid development of plea bargaining. Plea bargaining can shorten the time for the court to handle cases and save the litigation cost for the country. Compared with the formal criminal procedure, it can greatly improve the settlement rate and play a great role in solving the accumulated cases.

Secondly, it embodies the democracy of criminal proceedings, affirms the defendant's status as the subject of litigation, and is conducive to cultivating the concept of respecting the defendant's status as the subject of litigation, so that he can get practical benefits, that is, he can get a lighter punishment because he pleads guilty. For criminal suspects and defendants who have been taken compulsory measures, what they need most is to restore personal freedom and get spiritual relief. Through plea bargaining, we can end the unstable detention state as soon as possible and get rid of the lawsuit as soon as possible, which is helpful to reduce the psychological pressure and resistance of criminal suspects and defendants.

Third, it is conducive to the legalization and real implementation of China's long-standing criminal policy of "confessing leniency", truly embodying the spirit of encouraging defendants to plead guilty, urging criminals to confess guilt, and embodying the spirit of encouraging defendants to plead guilty, which is conducive to solving the problems of extorting confessions by torture and extended detention in judicial practice. In the past, in judicial practice, it often appeared that "confession is lenient, and prison is worn out; Strictly resist and go home for the New Year. " This abnormal phenomenon greatly reduces the enthusiasm of the defendant to plead guilty, leads to the extreme psychology of the defendant's resistance, and is not conducive to the reform of criminals.

Finally, it is conducive to protecting the rights of victims. After suffering personal and property damage, the victim is undoubtedly eager to get rid of the lawsuit as soon as possible, especially to get compensation as soon as possible. Plea bargaining can just meet this requirement of the victim. Moreover, it can save the victim's expenses in the litigation process and reduce his litigation cost. This is particularly prominent in cases such as injuries and traffic accidents. In judicial practice, the judicial system can't give the victims due compensation and comfort because of its conceit and shackles. If we can consider the victim's factors in the process of plea bargaining, respect the victim's right to participate in the transaction, and take the amount of compensation and the payment of compensation as the agreed content, there is no doubt that the victim's rights can be more fully guaranteed.

In a word, plea bargaining system is conducive to enhancing the predictability of judgment results, saving all parties' litigation investment, reducing judicial costs and improving litigation efficiency. If properly used, it is of great significance to realize the dual value goals of justice and efficiency in criminal proceedings. The introduction of plea bargaining system is of positive significance to China, where criminal judicial resources are relatively scarce, and China has an objective need to promote plea bargaining.

Thirdly, it is feasible for China to learn from the plea bargaining system.

(1) The defense and agency system has initially formed a framework.

Because the cultural quality and legal quality of the defendant and the victim are generally difficult to meet the needs of plea bargaining, it is necessary to ensure that the defendant and the victim have the conditions for plea bargaining from the system. According to China's current laws, criminal suspects can hire lawyers or other qualified citizens as defenders at the prosecution stage. In particular, the establishment of the legal aid system has provided direct help to the defendant in plea bargaining. The victim can also hire an agent to help him with the relevant litigation during the prosecution stage. Of course, as far as the implementation of legal aid for victims is concerned, there are still defects in the current system, but the perfection of this system is not an insurmountable obstacle. The author thinks that, on the whole, the revised Criminal Procedure Law of China 1996 has prepared preliminary conditions for the implementation of plea bargaining system.

(2) The change of people's concept provides the conceptual basis for the implementation of plea bargaining system.

There are two conceptual foundations related to the implementation of plea bargaining system here: one is the concept of resources; The first is the concept of justice. As far as the former is concerned, China people have gradually changed the concept of "China has a vast territory and abundant resources". On the contrary, "China has a large population and scarce resources" has gradually taken root in people's hearts. In this context, the plea bargaining system that fully embodies the economic value of litigation should be accepted by people. As far as the latter is concerned, people's view of justice has changed in two aspects: First, the ideal view of justice has changed to the realistic view of justice. Secondly, as the second meaning of justice, efficiency is becoming more and more important in people's minds. This makes people give up the traditional concept of absolute justice, and can look at the problem of relative justice more scientifically, so as to accept the second kind of justice under certain circumstances. Therefore, the transplantation of plea bargaining system is not a stroke of a pen by legislators, but can only be completed under the condition that the concept behind the system changes accordingly.

Fourthly, China's criminal procedure draws lessons from the idea of plea bargaining.

According to the living space provided by China's traditional legal culture and specific institutional environment and the experience of various countries in implementing plea bargaining system, China's plea bargaining system mainly includes the following contents:

(1) Scope of cases applicable to plea bargaining

The amendment of China's 1996 Criminal Procedure Law established summary procedure, which played a positive role in the diversion of criminal cases. However, the practice in recent years shows that China's summary procedure needs to be greatly improved in expanding the scope of application, improving the application rate and improving the degree of simplification. The transplantation and application of plea bargaining system caters to this demand, which will make the summary procedure in China simpler and faster, further reduce the cost and improve the litigation efficiency.

The introduction of plea bargaining system in summary procedure has a foundation that is easier to implement. First of all, the application scope of summary procedure is limited to minor crimes. According to article 174 of China's Criminal Procedure Law, the cases that can be applied with summary procedure are limited to "cases that may be sentenced to fixed-term imprisonment of less than three years, criminal detention, public surveillance and a single fine according to law". Applying plea bargaining within the scope of such minor crimes can minimize its negative impact and the risk of misjudged cases. Secondly, plea bargaining should not be used for recidivism, recidivism cases and complex accomplice crimes. Of course, with the accumulation of practical exploration experience and the maturity of various systems, the scope of application of plea bargaining can be liberalized in the future.

(2) clearly stipulate the applicable conditions of plea bargaining.

The author believes that the application of plea bargaining should meet the following two conditions:

First of all, it can only be cases with conclusive evidence but insufficient evidence. In other words, there is some evidence in the case, but the evidence is not sufficient. If the lawsuit is brought to the court, it does not meet the conditions for public prosecution. The decision not to prosecute does not meet the conditions of not prosecuting minor crimes and not prosecuting due to insufficient evidence. If the case is returned for supplementary investigation, it will not only increase the workload, but also extend the detention period. In other words, plea bargaining should be applied to cases with conclusive evidence but insufficient evidence. If the evidence is sufficient, there is no need to apply plea bargaining, but it should be solved through summary procedures.

Secondly, the prosecutor, the victim, the defendant and the defense lawyer participated in the consultation and reached an agreement. The application of plea bargaining should deal with the interests of the state, the defendant and the victim, and the plea bargaining can only be applied after the three parties reach an agreement. The author believes that the following problems should be solved:

(1) The defendant's voluntariness should be fully guaranteed. Because defendants often lack cultural quality and legal knowledge and are in the position of being investigated, it is very important for defense lawyers to participate extensively and play their roles effectively. Only in this way can we safeguard the legitimate rights and interests of the defendant, prohibit the transaction between the defendant and the prosecutor, and avoid the defendant from trading without knowing the law and negotiation skills, which will damage the due interests.

(2) The procuratorial organ shall fully listen to the opinions of the victims when deciding to implement plea bargaining, especially in seeking compensation or other appeasement for the victims. Especially in cases where personal and property are infringed, we must first satisfy the direct or indirect economic losses of the victims and appease their personal feelings. Plea bargaining is not applicable if the legitimate economic rights of the victim are not satisfied or the defendant has other behaviors that ignore the interests of the victim and the victim refuses.

(3) limit the degree of mitigation of charges or punishment

The forms of plea bargaining include relative non-prosecution, reduction of charges and the court's request for a lighter sentence on the premise that the defendant pleads guilty. The latter two forms all involve the degree of penalty reduction. If the scope of giving up punishment is too large, it will not only damage judicial justice, but also greatly damage the proper function of punishment. Therefore, it is necessary to limit the scope of transactions. In my opinion, there are two situations in which the procuratorial organ can reduce the crime: one is to give up one or more of several crimes; The second is to abandon the accusation of some criminal facts when several crimes in one crime constitute facts. In these two cases, the only thing that the procuratorial organ can give up is that the circumstances of the crime are minor or the facts of the crime are minor, and the crime with heavier legal punishment cannot be given up. At the same time, among several criminal facts of the same crime, the more important criminal fact cannot be abandoned. Another point that must be emphasized is that plea bargaining often happens when it is difficult for the prosecution to obtain evidence. Therefore, if the evidence is sufficient, there is no danger of being acquitted, and it is not a minor crime, the prosecution has no need to trade.

The prosecution's request for a lighter sentence from the court is also a form of plea bargaining. When such a request becomes the result of a transaction, the court must usually satisfy such a request to reflect and safeguard the integrity of the judiciary. However, when the prosecution asks the court to take a lighter sentence as the transaction price, it cannot promise to significantly reduce the penalty. Therefore, the range of light punishment should be limited. Some scholars suggest learning from the practices of Britain and Italy, and the reduction range is 1/4 to 1/3, which is of reference value. The author believes that it is unreasonable to sentence too lightly or too heavily. Too many congresses will seriously sacrifice the justice of the judiciary, which is not conducive to the realization of the purpose of punishment; Too small will be unattractive and will greatly reduce the transaction rate. Therefore, when implementing the plea bargaining system, it is necessary to establish guiding norms for the complainant to put forward sentencing suggestions and the judge to review sentencing suggestions for reference.

Establish a judicial review mechanism for plea bargaining.

Without the necessary review and supervision mechanism, it is difficult to prevent plea bargaining from sacrificing justice because of the lack of necessary constraints. Various review and supervision mechanisms may be very important or indispensable. They can restrict plea bargaining from all aspects and prevent it from unprincipled trading, but the judicial review mechanism is particularly important, because only such restrictions can produce legal effect and directly deny a wrong transaction. Judicial review means that after the accused and the defendant reach a transaction agreement, they are obliged to accept the court's review, and the judge also has the right to cancel the transaction reached by the accused and the defendant. The author believes that when a judge exercises the right of judicial review of plea bargaining, there are two points that must be clarified as principles: First, if the content of plea bargaining is only to reduce charges, the judge must follow the principle of no charges and no trial, and must not take the initiative to directly intervene. Only when the victim has the right to sue directly according to Article 145 of the Criminal Procedure Law can the judge examine the contents of his transaction. If plea bargaining does seriously damage judicial justice, the court may ask the procuratorial organ to re-examine the contents of the transaction, otherwise the court may directly accept the prosecution of the victim according to law. Second, judges should not abuse the veto power. Plea bargaining, once established as a system, should maintain its credibility. The judge has the right to overturn any concluded transaction, but the court should not exercise this right at will, otherwise the plea bargaining will exist in name only.

(5) Establish unfair trade relief mechanism.

Practice shows that no perfect law can be perfect. After the law is enacted, once it is applied, there may be defects or problems of one kind or another. Therefore, the occurrence of unfair plea bargaining cannot be completely avoided. In order to prevent the occurrence of unfair trade to the maximum extent, or provide timely relief after unfair trade, it is necessary to establish a supporting relief mechanism. The author believes that this relief mechanism mainly has two contents: one is to establish a restraint mechanism, which mainly refers to the victim restraint mechanism, the defendant restraint mechanism and the judge review mechanism; Second, the trial supervision procedure is applicable to plea bargaining. After plea bargaining takes legal effect, if it is found or there is evidence to prove that the transaction was reached in a serious violation of judicial justice, or the transaction seriously damaged judicial justice, then it is absolutely necessary to retry the plea bargaining case and correct the mistakes through trial supervision procedures. This will not affect, at least not seriously, the credibility of plea bargaining system and the transaction rate of plea bargaining, because the standard of trial supervision procedure is different from that of reviewing whether a plea bargaining has damaged the principle of judicial justice without plea bargaining system. Whether the criminal case closed by plea bargaining enters the trial supervision procedure and whether the sentence is changed after the trial supervision procedure mainly depends on whether the original transaction is entirely voluntary by both parties and whether the process and result of the transaction seriously deviate from judicial justice. Through the above two kinds of remedies, the mistakes that may occur in the process of plea bargaining that damage judicial justice can be corrected in time.

Through strict system design, we can completely absorb the reasonable system factor of solving the efficiency of criminal proceedings in western common law countries-plea bargaining. There is no need to look at the reform of a traditional system practice in the context of the legal system. At the same time, the author thinks that denying the applicable value of plea bargaining is the easiest way to prohibit it, but it cannot be explained whether it is a legislative error or a judicial error. In the future, China's criminal litigation mode is an efficient compromise mode which combines authoritarianism and litigiousism and takes justice as the basic concept. It needs the courage of scholars to innovate and decision makers to experiment.

Precautions:

(1) See People's Procuratorate, No.7, 2002 for the special discussion.

(2) See Plea Bargaining in China, edited by Chen Guangzhong, China Procuratorate Press, March 2003, p. 1.

③ You and Lv Anqing, Towards Rational Justice, China University of Political Science and Law Press, July 5438+0, 2006, p. 53.

④ See Bian Jianlin's translation of American Rules of Criminal Procedure and Evidence, China University of Political Science and Law Press, 1996, p. 10.

⑤ Report of the Supreme People's Procuratorate at the National People's Congress March 2002 1 1.

⑥ The first case of domestic plea bargaining was concluded, Legal Daily 3rd edition, April 2002 19.

7. See Wang Yizhen, Foreign Criminal Procedure Law, Peking University Publishing House, 1990, p. 260.