First, the overall situation of sentencing recommendations.
From 2009 to 20 1 1, a hospital prosecuted 354 criminal cases with 562 people, and 469 people adopted sentencing suggestions, with the adoption rate of 83.5%. Among them, there were 32 cases with 32 people endangering public safety, and it was suggested that 32 people be sentenced, with the adoption rate of 100%. In the case of disturbing the order of the socialist market economy 16 cases 2 1 person, it is recommended to sentence 20 people, and the adoption rate is 95%. There were 565,438 cases of crimes against citizens' personal rights and democratic rights +0 cases with 74 people, and 70 people were recommended to be sentenced, with an adoption rate of 94.6%. There were 58 cases 153 people disturbing social management order, and the recommended sentencing was 129 people, with an adoption rate of 84.3%. There are 260 people in 189 crimes against property, and it is recommended to sentence 204 people, with an adoption rate of 78.5%. There were 23 cases of duty crime 18 cases, and it was suggested to sentence 13 cases, with the adoption rate of 56.5%.
Second, the analysis of the reasons why sentencing suggestions are not adopted.
There are many reasons why sentencing suggestions are not adopted, including the influence of the current trend of commutation, the differences between procuratorial and legal departments on the nature of cases, and the different assessment mechanisms of different judicial organs at present.
1. The trend of lenient sentencing leads to generally light sentencing.
In recent years, it has been found that under the ideology of severe punishment, in the face of rising crime rate and poor social order, people will instinctively attribute it to insufficient punishment and ineffective crackdown, and thus advocate continuing to increase punishment and fall into a vicious circle. Therefore, it is a new choice to try to reduce punishment in some crimes. As far as theft is concerned, if the amount is huge, it should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Then the benchmark sentence for sentencing is six and a half years. On this basis, the final sentencing can be determined by combining various circumstances such as lighter, heavier and lighter. However, looking through the files of the past three years, we can find that unless the amount is extremely huge, the sentencing of a few theft cases can be between six and ten years. If the sentencing proposal falls within this range, it is obviously unacceptable to the court. There are also typical cases of duty crimes. During the period of accepting bribes of 654.38+10,000 yuan to 300,000 yuan, those who surrender or return the stolen goods are often sentenced to fixed-term imprisonment of not more than seven years.
2. Impact of different assessment mechanisms
Both the court system and the procuratorate system have established a complete and detailed assessment system. The two evaluation systems have different evaluation purposes, which is one of the important reasons why sentencing suggestions are not adopted. At present, the court should evaluate the appeal rate of criminal cases. Before deciding a specific case, the competent court should not only consider the facts and evidence of the case, but also pay close attention to whether the defendant will appeal. The procuratorate must submit a sentencing proposal at the same time when prosecuting, and this proposal will also be delivered to the defendant together with the indictment. The defendant's expectation of the sentence is also largely implemented in the sentencing proposal. In order to pursue a lower appeal rate, the court often finds it low, that is, the sentencing is lower than the range of sentencing suggestions put forward by the procuratorate, and the defendant enjoys the right of two evils.
3. When there are multiple sentences to choose from in the same file, sentencing suggestions are often not adopted. The Guiding Opinions on Sentencing Suggestions formulated by the Procuratorate stipulates that sentencing suggestions shall not be crossed. As a result, this happened. When the criminal law stipulates that you can choose between six months of fixed-term imprisonment, criminal detention or public surveillance, the procuratorial organ can only choose one of them because it cannot cross the types of punishment. When the procuratorate chooses fixed-term imprisonment, the court often decides to detain him, and vice versa. This phenomenon was more obvious when the procuratorate protested against the court's judgment and was changed by the intermediate people's court.
4. Due to the defendant's own reasons, the circumstances of sentencing changed after the case was submitted to the court. In judicial practice, in many cases, the defendant refused to confess the facts of the crime during the investigation, examination and prosecution stages. After the case went to court, the defendant bowed his head and pleaded guilty, which easily led to the situation that sentencing suggestions were not adopted. In the same situation, the defendant surrendered first and then retracted his confession, and pleaded guilty after the case. Because surrender is a sentencing circumstance that the court can reduce the punishment, especially when it involves reducing from the previous sentence to the next sentence, the change of the defendant's attitude of pleading guilty leads to the inadmissibility of sentencing suggestions.
5. The law stipulates that the sentencing range is relatively large, and there is no detailed sentencing opinion. Two different understandings were investigated by law. Like arson. After checking all the judicial interpretations, there is no clear opinion on the detailed sentencing of this crime. When our hospital handled this kind of case for the first time, it referred to the cases of other brother hospitals in the city, and also consulted the public prosecution department of the city hospital. By comparing similar cases that violated the same object, it made detailed reasoning and argumentation. Regrettably, due to disagreement with the court, the court failed to adopt our sentencing recommendations.
Three. Countermeasures and suggestions to improve the adoption rate of sentencing suggestions
Sentencing proposal is a legal document formally delivered by the procuratorial organ, which has strict requirements in terms of production subject and writing format, and its embodiment is the procuratorial organ's handling opinions on public prosecution cases. As a formal legal document, it has the characteristics of authority and seriousness. Once delivered, it will take effect. Therefore, the low adoption rate of sentencing suggestions not only affects the handling effect of cases, but also affects the image of procuratorial organs. It is suggested that the adoption rate of sentencing suggestions should be continuously improved from the following aspects.
1. Correctly treat the court's discretion and the procuratorate's right to seek punishment.
In many cases, the judicial organs often take the judge's discretion as the basis for not adopting the sentencing suggestions of the procuratorial organs. The sentencing suggestion put forward by the procuratorial organ is actually a part of the right to seek punishment, which means that the prosecutor puts forward clear requirements for the conviction of the defendant on behalf of the procuratorial organ, and at the same time puts forward specific suggestions for the sentencing of the defendant by the judicial organ. Since it is a suggestion, it is not mandatory and there is no interference in the independent trial of judges. In fact, sentencing suggestions play a role in reminding, attracting attention and starting supervision to a great extent, which can prevent judges from making mistakes and falling into thinking inertia because of partial listening and partial trust. Properly handled, the right to seek punishment can become a powerful weapon for judges to continuously improve the quality of trials.
2. Strengthen contact and coordination, and establish a working consultation and cooperation mechanism.
Strengthening contact and coordination is always the best way to solve problems. The two institutions of law enforcement and inspection should fully expound their opinions on common issues such as the application of law and the adoption of evidence in the process of handling cases by proposing to hold joint meetings on a regular basis, so as to seek understanding and recognition. At the same time, the issues that have reached consensus should be fixed in the form of meeting minutes to guide similar cases in the future. At the same time, for those who have * * * common sense, they can be countersigned by two provinces and cities, which will be promoted throughout the province and save judicial resources. In addition, we can try to establish a short-term exchange exercise between the two courts to understand the difficulties and dilemmas in each other's work roles, empathize with each other, understand each other's work, and provide support for the smooth development of future work.
3. Revise the assessment indicators and constantly improve the case quality assessment system.
At present, the assessment system of the two institutions is improving day by day, but it is still far from giving full play to the incentive function scientifically and effectively, and there are still many places that can be improved. First of all, the assessment of the court should be unified from top to bottom, cancel the assessment of the appeal rate of cases, and refine the assessment indicators of the appeal rate. The right of appeal is the legal right of the defendant, and no one can directly or indirectly deprive it. The essence of lightly sentencing the defendant to prevent non-prosecution is to deprive the defendant of the right to appeal in disguise. Law can never talk about conditions, let alone freedom. From this perspective, it is imperative to cancel the appeal rate assessment of the court system. Secondly, the procuratorial organs should also correctly treat the adoption rate of sentencing suggestions. We can't blindly ask for heavier sentencing for the defendant in pursuit of passing rate, which is not only inconsistent with the role of legal supervisor of procuratorial organs, but also inconsistent with its consistent position of fairness and justice.
4. Summarize the two combinations through training, and constantly improve the professional quality.
According to the different characteristics of different posts in procuratorial organs, targeted job training should be carried out to improve the ability of public prosecutors to review cases and appear in court for public prosecution. Establish a regular training system for front-line case handlers to enhance their ability to understand and apply laws and evidence. The public prosecutor should increase the ability to explain and reason in court, demonstrate the legality and rationality of sentencing suggestions in detail, and lay a foundation for the court to better adopt them. At the same time, the comparison system of court decisions is established. By sorting out and analyzing the judgments of similar cases in recent years, we can judge the results of the court's handling of such cases more clearly, so as to put forward more accurate sentencing suggestions. Exercise the right of protest in due course. For cases that are obviously beyond the scope of sentencing suggestions and meet the conditions of protest, the court's mistakes can be corrected by protest, thus improving the adoption rate of sentencing suggestions.
About the author: Wang Weihong (1982-), female, native of Nantong, Jiangsu Province, assistant prosecutor of the People's Procuratorate of Nantong Economic and Technological Development Zone, Jiangsu Province; He (198 1-), male, from Dongtai, Jiangsu Province, is a policeman of Netan Brigade of Jiangyan Public Security Bureau, Jiangsu Province.