“Retaliatory prosecution refers to prosecutorial behavior driven by retaliatory motives or evident injustice, often disregarding due process requirements. This phenomenon remains largely unexplored in China, representing a legal void. Nonetheless, within the context of the lenient confession and punishment system, such prosecutions may find a legitimate basis.” Through an examination of the phenomenon of “retaliatory prosecution” in the judicial system, it becomes evident that issues such as the misuse of criminal compulsory measures during the investigation and prosecution process for ulterior motives, as well as the filing of lawsuits against defendants based on vague allegations and inadequate evidence, are prevalent. Failure to effectively address and regulate such behavior may perpetuate a culture of “retaliatory prosecution”, ultimately hindering the rational distribution of criminal justice resources and compromising the protection of the rights of the accused. Identifying and addressing the issue of “retaliatory prosecution” by the procuratorate is a crucial prerequisite for achieving a balanced prosecution and defense, as well as procedural justice for the accused. Therefore, this paper aims to delve into the unique manifestations and underlying causes of “retaliatory prosecution” in China. This analysis will be conducted by studying the litigation system related to “retaliatory prosecution” in foreign criminal proceedings and integrating it with the characteristics of the guilty plea and punishment system within China’s judicial framework and criminal justice process. The objective is to clarify the concept and negative consequences of “retaliatory prosecution”. Furthermore, while respecting the court’s central jurisdiction, we must refine the specific mechanisms of leniency in confession and punishment, establish procedural adjudication mechanisms, and introduce a graduated sentencing suggestion right. These enhancements aim to bolster procedural relief and incentivize the accused to voluntarily confess their guilt and accept punishment.
References
[1]
Bian, J. L., & Qian, C. (2022). Study on the Generation Mechanism of Sentencing Recommendation under the System of Leniency in Plea Bargaining. Yunnan Social Science, No. 1, 99-107.
[2]
Bibes, S. (2018). Plea Bargaining outside the Courtroom (Translated by Yang Xiande and Liao Yu). China Law Press.
[3]
Chen, G. Z., & Zheng, X. (2011). On the Principle of Judging Evidence in Criminal Proceedings—Another Discussion on Several Issues in the Revision of the Criminal Procedure Law. Law, No.9, 312.
[4]
Chen, S. (2019). On the Rational Application of the Integration of Arrest and Prosecution. Law and Business Research, 36, 14-25.
[5]
Chen, X. G. (2013). The Relationship between the Constitution and Criminal Procedure Law and Its Transformation—Interpretation of China’s “Human Rights into the Constitution” to “Human Rights into the Law”. Beijing Politics and Law Vocational College Journal, No. 2,11-18.
[6]
Davis, A. J. (1998). Prosecution and Race: The Power and Privilege of Discretion. Fordham Law Review, 67, 13-25.
[7]
Doug, L. (2013). Vindicating Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past and Future. The Yale Law Journal, 123, 2013-2014.
[8]
Fisher, G. (2012). The Triumph of Plea Bargaining: A History of Plea Bargaining in the United States (Translated by Guo Zhiyuan, 2012 ed.). China University of Political Science and Law Press.
[9]
Gao, T. (2011). On the United States Retaliatory Prosecution Rules and Its Reference to China. Shandong Police Academy Journal, 23, 48-54.
[10]
Gao, T. (2017). The New Development of German Criminal Consultation System and Its Enlightenment. Global Law Review, 39, 152-172.
[11]
Gong, Y. F. (2017). Illegal Evidence Exclusion Rules in the Judicial Practice of the Problem and Response. Journal of Zhengzhou University (Philosophy and Social Science Edition), 50, 42-45.
[12]
Guo, G. M. (2020). Research on the Case Management Mechanism under the Vision of the System of Leniency of Guilty Plea and Punishment. Shandong University.
[13]
Guo, H., & Gao, H. (2021). Implementation Risks and Procedural Control of the Plea and Penalty Leniency System: An Expansion of the Implementation Risks Based on the U.S. Plea Bargaining System. Law Forum, 36, 153-160.
[14]
Han, X. (2023). Sentencing Recommendations in the Plea and Penalty Leniency System: Determinate or Range Sentences. Rule of Law Research, No. 1, 112-122.
[15]
He, J. H. (2020). Reconfiguration of Prosecutorial Discretion—Unfolding in the Context of “Plea and Penalty Leniency”. Journal of Suzhou University (Philosophy and Social Science Edition), 41, 85-95.
[16]
Hermann, J., & Cheng, L. (2004). Negotiated Justice-Plea Bargaining in German Criminal Procedure. Chinese Journal of Criminal Law, No. 2, 116-126.
[17]
Lan, M. R. (2020). Negative Effects and Corrective Paths of Obstructing the Defense Function of Lawyers in Plea Bargaining Cases. Journal of Yibin College, 110, Article ID: 20230404.
[18]
Li, J. D. (2020). U.S. Plea Bargaining Program Victims’ Rights Protection System and Its Revelation—The Perspective of Three Federal Typical Plea Bargaining Cases. Journal of Henan Normal University (Philosophy and Social Science Edition), 47, 51-61.
[19]
Liu, F. Q. (2017). The Construction Path of Plea Bargaining Leniency System—A Study Based on the Pilot Experience of Criminal Speedy Trial Program. Chinese Journal of Criminal Law, No. 3, 88-109.
[20]
Liu, S. J. (2022). Problems and Corrections: A Study on the Improvement of the Sentencing Recommendation System in Cases of Pleading Guilty and Convicting to Punishment—An Appraisal of the Guidelines on Sentencing Recommendations Issued by the Supreme People’s Procuratorate. Journal of Liaoning Normal University (Social Science Edition), 45, 31-41.
[21]
Ma, T. J. (2021). Research on Prosecutorial Interpretation Issues under the Plea and Penalty Leniency System. Journal of Fujian Police College, 35, 36-46.
[22]
Ma, Y., & Ren, N. N. (2015) Introduction and Reflection on the Exclusionary System of Illegal Evidence in England. Applicable Law, No. 3,12-18.
[23]
Meng, F. F. (2022). Comparative Analysis of Plea and Penalty Leniency System and Plea Bargaining System. In Shanghai Law Society (Ed.), Shanghai Law Research Collection 2022, Volume 9.Lawyer Law Research Collection (pp. 157-164). Publisher Unknown.
[24]
Min, C. L. (2017). Simplification of Procedures in the Plea Bargaining Leniency System. Journal of Soochow University (Philosophy and Social Science Edition), 38, 48-56.
[25]
Report of the Supreme People’s Procuratorate on the Application of the System of Plea and Punishment Leniency by the People’s Procuratorates (October 15, 2020 at the 22nd Meeting of the Standing Committee of the Thirteenth National People’s Congress) https://www.spp.gov.cn/zdgz/202010/t20201017_482200.shtml
[26]
Shi, Z.-M. (2018). Reinterpretation of “Voluntariness” of Plea and Punishment. Journal of Yunnan Police College, No. 6, 9-102.
[27]
Sun, D. Z. (2020). Research on the System of Leniency of Guilty Plea and Punishment. China University of Political Science and Law Press.
[28]
Wang, Y. L. (2021). The Construction of Prosecution and Trial in the System of Guilty Plea and Leniency of Punishment. China Criminal Law Journal, No. 6, 67-85.
[29]
Wei, D., & Meng, J. (2020). Revisiting the Right to Presence of Lawyers: A Negativism-Oriented Possibility—Taking the Period of Investigative Interrogation as a Research Node. Law Forum, 35, 120-129.
[30]
Xiong, Q. H. (2012). The Normative System of Criminal Defense and Its Operating Environment. Politics and Law Forum, 30, 47-58.
[31]
Yan, Z. H. (2017). The Study of Non-Custodialization of Guilty Plea Cases. Journal of Shanghai University of Political Science and Law (Rule of Law Series), 32,82-96.
[32]
Yao, L. (2017). The Role and Function of Duty Counsel in the Plea Bargaining Program. Law and Business Research, 34, 42-49.
[33]
Yi, Y. Y. (2019). Recognition and Definition of Fatigue Interrogation—An Expansion Based on 817 Practical Cases. Politics and Law Forum, 37, 118-131.
[34]
Yin, B. (2017). Returning to the Legal Text in the Name of the Constitution: The Beginning and End of the German Sentencing Negotiation and Recent Federal Constitutional Jurisprudence. Legal Science (Journal of Northwest University of Political Science and Law), 35, 185-200.
[35]
Zhang, J. W. (2016). Pleading Guilty and Accepting Punishment Leniency Treatment: Connotation Interpretation and Technical Analysis. Law Application, No. 11,28.
[36]
Zhao, H. (2017a). On the Justification Basis of Leniency. Politics and Law, No. 11,128-140.
[37]
Zhao, X. G. (2017b). Selective Prosecution of Environmental Crimes and Its Defense—Another Discussion on the Establishment and Improvement of Criminal Procedural Review Mechanism. Journal of Capital Normal University (Social Science Edition), No. 1, 58.
[38]
Zhou, E. (2017a). Reflection on the Accountability Mechanism for Wrongful Conviction—Another Discussion on the Improvement of China’s Judicial Responsibility System. Law and Business Research, 34, 314.
[39]
Zhou, X. (2017b). On the Basic Principle of Leniency and Its Types—An Analysis Based on the Pilot Criminal Speedy Dismissal Procedure. Politics and Law, No. 3, 154-161.
[40]
Zhou, X. (2018a). On the Magnitude of Leniency. Journal of Law, 39, 86-95.
[41]
Zhou, X. (2018b). Practical Reflection on the Pilot of Plea and Penalty Leniency System. Contemporary Law, 32, 123-133.
