Although there are only three articles, the scope, conditions, procedures and legal effect of public prosecution cases settled by the parties are
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20 13 introduction to national judicial examination
Examination outline, examination paper 1, examination paper 2, examination paper 3 and examination paper 4.
It is of great significance to standardize the judicial practice of criminal reconciliation in China and ensure the handling effect of criminal reconciliation cases. 1. Scope of public prosecution cases where the parties reconcile According to Article 277 of the newly revised Criminal Procedure Law of 20 12, the parties in the following two types of public prosecution cases can reconcile: (1) Because of a civil dispute, they are suspected of criminal cases stipulated in Chapters IV and V of the Specific Provisions of the Criminal Law and may be sentenced to fixed-term imprisonment of not more than three years; (two) criminal cases of negligence other than dereliction of duty that may be sentenced to fixed-term imprisonment of not more than seven years. This article also provides an exception to the application of reconciliation, that is, if a criminal suspect or defendant in a case that meets the scope of the above-mentioned reconciliation case intentionally commits a crime within five years, the procedures specified in this chapter shall not apply. 2. Conditions for reconciliation between the parties 20 12 Article 277 of the newly revised Criminal Procedure Law stipulates that if a criminal suspect or defendant sincerely repents by compensating the victim for losses or apologizing, and the victim understands, and the victim voluntarily reconciles, both parties can reconcile. According to this provision, the parties should meet the following conditions: (1) The criminal suspect and defendant must sincerely repent; (2) The criminal suspect or defendant obtains the victim's understanding by compensating the victim for the loss or making an apology; (3) Voluntary reconciliation of victims. The above three conditions must be met at the same time, and none of them is dispensable. 3. Procedures for Reconciliation of Parties 20 12 Article 278 of the newly revised Criminal Procedure Law stipulates that if both parties reach a settlement, the public security organ, the people's procuratorate and the people's court shall listen to the opinions of the parties and other relevant personnel, examine the voluntariness and legality of the settlement, and preside over the preparation of a settlement agreement. According to this regulation, the reconciliation between the two parties needs to go through the following procedures: (1) Both parties propose reconciliation; (2) Public security organs, people's procuratorates and people's courts shall listen to the opinions of the parties concerned and other relevant personnel; (3) The public security organs, people's procuratorates and people's courts review the voluntariness and legality of reconciliation; (4) Public security organs, people's procuratorates and people's courts shall preside over the parties to reach a settlement agreement. 4. The legal effect of the parties' reconciliation. 20 12 Article 279 of the newly revised Criminal Procedure Law stipulates that the public security organ may make suggestions to the people's procuratorate for leniency in cases where a settlement agreement is reached. The people's procuratorate may put forward suggestions for lenient punishment to the people's court; If the circumstances of the crime are minor and there is no need to be sentenced to punishment, a decision not to prosecute may be made. The people's court may punish the defendant lightly according to law. According to this provision, the cases in which the parties reach a settlement are handled differently by different organs at different stages of litigation, which has different legal effects on the parties: (1) In cases in which the parties reach a settlement at the investigation stage, the public security organs may make suggestions for lenient treatment to the people's procuratorate. (two) the two sides reached a settlement in the prosecution stage, the people's Procuratorate may suggest to the people's court a lighter punishment; If the circumstances of the crime are minor and there is no need to be sentenced to punishment, a decision not to prosecute may be made. (3) If both parties reach a settlement at the trial stage, the people's court may give the defendant a lighter punishment according to law. Second, the significance of establishing a reconciliation procedure for the parties to a public prosecution case Some scholars believe that the establishment and implementation of the criminal reconciliation system in China has added a more economical and efficient dispute resolution mechanism to the traditional criminal law. [2] The establishment of criminal reconciliation procedure in our legislation has the following significance: 1. This is conducive to the construction of a harmonious socialist society in China. The Fourth Plenary Session of the 16th CPC Central Committee put forward that China should build a socialist harmonious society, and the establishment of litigation procedure of parties' reconciliation of public prosecution cases in China appeared under the background of building a socialist harmonious society. It can be said that the theory of socialist harmonious society is the fundamental and direct theoretical basis for the emergence of China's criminal reconciliation system. In the traditional theory and practice of criminal justice in China, the principle of state prosecution has always been emphasized, and substantive realism has been pursued, and public prosecution cases cannot be reconciled. After the theory of socialist harmonious society was put forward, China's theoretical circles and judicial practice departments began to pay extensive attention to and explore the criminal reconciliation of public prosecution cases. This happens because the theory of socialist harmonious society requires multiple solutions to social contradictions, which fundamentally provides theoretical support for criminal reconciliation. The diversity of ways of realizing social stability, resolving contradictions, repairing relations and solving cases embodied in criminal reconciliation just meets the requirements of China's theory of building a harmonious socialist society. Practice has proved that through "limited reconciliation" of some criminal cases, remarkable social effects can be achieved in improving judicial efficiency and building a harmonious judicial environment. [3] 2. It can realize litigation diversion, which is conducive to improving the efficiency of criminal proceedings.
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The implementation of criminal reconciliation system can save a lot of judicial resources, shorten the period of handling criminal cases, improve litigation efficiency and alleviate the contradiction of insufficient judicial personnel. In the case of extremely limited carrying capacity of judicial resources, it is more important to carry out necessary litigation diversion and improve the efficiency of criminal proceedings. Through the criminal reconciliation system, a considerable number of criminal cases do not need to go through the complicated ordinary procedures of criminal proceedings, but finally reach a consensus through equal consultation between the parties to solve criminal conflicts. This enables criminal cases to be diverted in time, greatly reducing the cost of criminal proceedings, thus making the tight judicial resources in China more reasonably distributed and utilized, and effectively improving the efficiency of criminal proceedings. Hu Jing, director of the Third Public Prosecution Division of the People's Procuratorate of Chaoyang District, Beijing, said that in ordinary criminal injury cases, the procuratorial organs review and prosecute until the court makes a judgment and executes it. The average number of days for handling cases by criminal reconciliation procedure is about 65,438+00 days less than that by normal litigation procedure. [4] 3. It is conducive to better promoting the defendant's return to society and better achieving the purpose of punishment. The ultimate goal of punishment is to encourage criminals to turn over a new leaf and return to the real society. Therefore, for those criminals with minor crimes and less subjective malignancy, what is important is not how to punish them, but how to make them return to society as soon as possible and let society accept repentant criminals. In the practice of criminal justice, there is no deep hatred between the defendant and the victim in some cases, and the nature of the crime is not bad, and the subjective malignancy is not great. They just broke the law because of ordinary civil disputes, ignorance or impulsiveness. If they have sincerely repented in the process of litigation and obtained the understanding of the victims, we have no reason to insist on strict commitment, but should give them a chance to turn over a new leaf. In the criminal reconciliation procedure, if the offender and the victim get the victim's understanding and reach a settlement agreement, and compensate the victim for psychological and material damage, they should generally be treated differently from the criminals in the ordinary procedure, so as to avoid the negative social effects that the strict application of punishment may bring to them and create favorable conditions for the re-socialization process of these criminals. Although the application of criminal reconciliation procedure is suspected that criminals spend money to buy punishment, it is undeniable that the application of criminal reconciliation system is conducive to the defendant's return to society, so as to better achieve the purpose of punishment. As Yuan Ting, president of the People's Court of Beitang District, Wuxi City, Jiangsu Province, said, "Applying criminal reconciliation to minor criminal cases and urging the defendant to actively compensate can not only make up for the loss of the victim, but also help the defendant return to society." [5] 4. The traditional criminal procedure, which can compensate the victims to a certain extent and recover their material losses and psychological trauma without criminal reconciliation, usually only maximizes the interests of the state and society infringed by criminal acts, and the realization of the interests of the victims is often symbolic. In the criminal reconciliation procedure, not only the material loss of the victim can be fully compensated, but also the victim can claim compensation for the mental damage he suffered. Because the effect of criminal reconciliation can make the offender get the result of lenient punishment, therefore, in the process of reconciliation and negotiation between the two parties, the offender will try his best to meet the compensation requirements put forward by the victim. In this way, the victims increased their satisfaction and recovered their psychological trauma by participating in the reconciliation process. At the same time, the criminal reconciliation system provides a way for the victims to vent their revenge, and the victims can tell their victims' experiences to criminals and reconciliation participants in the process of reconciliation, so that their bad emotions can be vented and their psychological trauma can be calmed down. 5. The process of criminal reconciliation is helpful to repair the social relationship destroyed by crime, and it is an activity that pays more attention to the relationship between the offender and the victim. As ordinary individuals in social life, victims and criminals are more concerned about their personal interests than public authorities and lawyers, and they are more aware and aware of their social relations. At the same time, because they are not law enforcers or legal service providers, they keep a certain distance from the law, so they can introduce the specific situation and social norms of the case in communication and restore the rich emotional and social relations between people. In addition, if the offender and the victim reach a settlement agreement in criminal reconciliation, it will not only give the offender a chance to be a good social citizen who dares to take responsibility, but also help the victim return to the life state before being infringed by the crime and repair the social relationship destroyed by the crime. [6] Third, the in-depth thinking on the litigation procedure of the parties' reconciliation of public prosecution cases. It is a highlight of the revision of the Criminal Procedure Law to set the litigation procedure of the public prosecution case of party reconciliation as the new procedure of the criminal procedure law, which not only gives the criminal reconciliation that has been tried for many years in various places a legal status, but also provides a legal basis for the criminal reconciliation of public prosecution cases in the future. However, the provisions of the Criminal Procedure Law on this procedure are too simple to meet the needs of judicial practice to a certain extent, and it needs to be improved to enhance its operability. 1. The subject who presides over criminal reconciliation in public prosecution cases and the subject who confirms the validity of criminal reconciliation agreement should be further clarified and distinguished.
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Although the newly revised Criminal Procedure Law does not specify the subjects who preside over the parties' reconciliation in public prosecution cases, according to the relevant provisions of the law, we can see that public security organs, people's procuratorates and people's courts can all become the subjects who preside over the parties' reconciliation in the process of handling cases. 20 1 165438 "the Supreme People's Procuratorate's opinions on handling minor criminal cases in which the parties have reached a settlement" stipulates in Article 4: "The settlement between the two parties includes the settlement reached by the parties themselves, as well as the settlement reached after mediation by people's mediation committees, grassroots mass autonomous organizations, organizations or individuals to which the parties belong, or colleagues and relatives." According to this regulation, in addition to self-reconciliation, the main body presiding over criminal reconciliation also includes organizations or individuals such as people's mediation committees. However, in the newly revised Criminal Procedure Law, it is not clearly stipulated whether people's mediation committees, grass-roots autonomous organizations, organizations or individuals to which the parties belong, or colleagues, relatives and friends can mediate in criminal prosecution cases, promote the parties to reach a settlement, preside over the production of a settlement agreement, and which subject will examine and determine the effectiveness of the settlement agreement. Although the conclusion of criminal reconciliation will not lead to the end of criminal proceedings, it can actually be used as one of the reference bases for judicial organs to review and handle cases. However, since the law has stipulated that the public security organ should review the voluntariness and legality of the settlement agreement reached by both parties and preside over the production of the settlement agreement. Then, it should be further clarified whether the people's mediation committee, grass-roots autonomous organizations, the units where the parties work and other institutions are qualified to preside over the reconciliation between the two parties, issue a settlement agreement, and how to determine the effectiveness of the settlement agreement. In fact, it is necessary to further define and distinguish the subject who presides over the settlement in public prosecution cases and the subject who decides the validity of the settlement agreement. We believe that as long as the two parties are willing to settle, the people's mediation committee, grassroots autonomous organizations and the units where the parties work can also preside over the settlement and preside over the parties to make a settlement agreement. However, it needs to be handed over to the public security organ for final review to confirm the effectiveness of the settlement agreement. This can not only effectively mobilize the enthusiasm of people's mediation committees and other organizations or individuals to participate in criminal reconciliation, but also greatly reduce the workload of the three organs of public security law and improve the litigation efficiency of criminal proceedings. 2. The time and frequency of criminal reconciliation should be further clarified. The revision of the Criminal Procedure Law does not clearly stipulate the time and frequency of criminal reconciliation. In judicial practice, it is easy for the parties or public security organs to abuse criminal reconciliation, which leads to the decline of its positive role. If the law does not reasonably limit the time and times when the parties to a criminal case can reach a criminal settlement agreement, and clearly stipulates when the parties to a criminal case should reach a criminal settlement agreement at the latest in criminal proceedings, the parties to a criminal case can reach a settlement agreement many times at most. This may not only undermine the seriousness, authority and impartiality of the judiciary, but also reduce the efficiency of litigation, which is not in line with the prevailing principles of litigation economics. Therefore, the time and frequency of criminal reconciliation in public prosecution cases should be further clarified. [3] 3. The handling of invalid criminal settlement agreements should be further stipulated. In judicial practice, the situations that lead to the invalidity of criminal settlement agreements are generally as follows: First, the perpetrator deceives the victim, leading the victim to sign a criminal settlement agreement with him, and deliberately delays or fails to perform the settlement agreement after receiving the results of lighter punishment or no punishment from the public security and judicial organs; Second, the real purpose of the victim's understanding of the perpetrator is to get a large sum of money compensation from the perpetrator as soon as possible, rather than really forgiving the perpetrator's behavior. After receiving monetary compensation from criminals, they will express their remorse to the public security and judicial organs that preside over criminal reconciliation under some pretext, and still ask the public security and judicial organs to continue to strictly investigate the criminal responsibility of criminals; Third, the victim was forced by various external pressures and agreed to reconcile with the offender against his will. Once the pressure is relieved, the victim will have a sense of autonomy, and will inevitably repent to the public security and judicial organs and demand that the criminal responsibility of the offender be strictly investigated. Although the amendment to the Criminal Procedure Law clearly stipulates the legal effect of the criminal settlement agreement, it does not stipulate how to deal with the invalid criminal settlement agreement that may occur in judicial practice, which requires us to further stipulate how the parties to the criminal settlement should safeguard their own interests and how the public security and judicial organs should reasonably exercise their rights when the criminal settlement agreement is invalid. 4. The criminal law basis of lenient punishment and how to punish leniently should be further determined. This amendment to the Criminal Procedure Law only stipulates that the people's procuratorate can make suggestions for lenient punishment, and if the circumstances are minor, it can make a decision not to prosecute, and the people's court can punish the defendant leniently according to law. Among them, there is no corresponding basis for what type of non-prosecution should belong to. The scope of lenient punishment is recognized as mitigating circumstances or mitigating circumstances, and the law has not given any explanation. This may lead to problems in the specific application of criminal reconciliation in judicial practice, which needs to be clarified in the future. 5. The supervision system of criminal reconciliation should be further clarified.
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In order to prevent the so-called phenomenon of spending money to buy punishment, this amendment to the Criminal Procedure Law also gives some consideration to the supervision system of criminal reconciliation of the parties, stipulating that the public security organ can make suggestions for leniency to the procuratorial organ, the procuratorial organ can make suggestions for leniency to the people's court, and the people's court can punish the defendant leniently according to law. In other words, the procuratorial organ may not accept the suggestions of the public security organ in this procedure, and the people's court may not accept the suggestions of the procuratorial organ for a lighter punishment. This actually reflects the mutual supervision and restriction of the three organs of the public security law. However, the Criminal Procedure Law does not stipulate the supervision of the parties to criminal reconciliation or the third party. In the process of criminal reconciliation, if there is no effective supervision by a third party who is not in charge of the reconciliation institution, then in the process of judicial practice, it may lead to the abuse of power and damage the rights and interests of one party. We believe that due process such as publicity procedure or public hearing procedure must be established to supervise the conclusion and implementation of criminal reconciliation, so as to listen to the opinions of both parties and the third party, thus effectively preventing the public security and judicial organs from abusing their discretion in handling criminal reconciliation cases. References: [1] Song et al. Investigation report on the application of criminal reconciliation by procuratorial organs [J]. Contemporary Law, 2009 (3): 3- 12. [2] Song Ying Hui. Research on Criminal Reconciliation System [M]. Beijing: Peking University Publishing House, 20 1 1: 4-57. [3] Luo Hui. The litigation procedure of public prosecution cases should be improved. Luojia legal system network [EB/OL]. (20 1 1- 10- 15)[EC _ articleid = 2703。 [4] Jibin Li. The draft amendment to the Criminal Procedure Law stipulates that specific public prosecution cases can be reconciled. Northern Network [EB/OL]. (20 1 1- 19- 12) [20 12-02. 12/0073 13090.shtml。 [5] Song Ying Hui and Ting He. Present situation and thinking of reconciliation between parties in guilty plea cases [J]. China Law, 2009 (3): 42-47. [6] Fan Chongyi. The progress and development of China's criminal procedure system [J]