TITLE:
Identification and Governance of “Retaliatory Prosecution” under the System of “Confessing Guilt and Accepting Punishment with Leniency”
AUTHORS:
Jun Li, Wei Zhang
KEYWORDS:
Retaliatory Prosecution, Plea Bargaining Leniency System, Sentencing Recommendations, Prosecutorial Discretion
JOURNAL NAME:
Beijing Law Review,
Vol.15 No.2,
June
7,
2024
ABSTRACT: “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.