TITLE:
Reconsideration of the Role of Prosecutors in the Chinese Plea Bargaining System: A Comparative Perspective
AUTHORS:
Jiahui Shi
KEYWORDS:
Plea Bargaining, Prosecutors, Judges, Chinese Criminal Procedure Law, German Model
JOURNAL NAME:
Chinese Studies,
Vol.10 No.2,
April
6,
2021
ABSTRACT: A plea bargaining system was introduced into Chinese
Criminal Procedure Law in 2018 and became a basic principle of Chinese Criminal
Procedure. This plea bargaining system embodies characteristics of both
adversary and inquisitorial models. Chinese prosecutors are granted with a
leading role in this plea bargaining system, as in the U.S., and can decide
which cases are suitable for plea bargaining, which type of process can be
applied, and give recommendations as to the sentencing, which judges shall in
principle follow. To transplant such an arrangement from the U.S. model into an
inquisitorial system, however, causes various problems. Fairness and justice
cannot be entirely guaranteed under the wide-ranging practice of plea
bargaining; the function of trials is derogated and undermined; and the
decision-making process on core issues is moved forwards to the pre-trial
period. Moreover, the procedural rights of defendants are more at risk when
prosecutors dominate plea bargaining without any supervision from outside. With
a brief introduction of an inquisitorial model based on the German plea
bargaining system, the role of Chinese prosecutors in plea bargaining is urged
to be reconsidered and their authority should be restricted in order to ensure
that judges are guaranteed the judicial power to make final decisions.