On October 24, 2019, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice issued the Guiding Opinions on the Application of the Leniency System for Pleas of Guilt, Punishment (Gao Procuratorate Fa [2019] No. 13, hereinafter referred to as the "Opinions"), which contains 60 articles, clarifying a number of controversial issues in judicial practice since the full implementation of the plea system. We believe that lawyers can achieve good defense results if they can accurately understand and apply them in criminal defense.

1. The meaning of "confession of guilt", "admission of punishment" and "leniency"

1. "Confession" means a complete truthful confession

"Confession" in the lenient system of plea of guilt and punishment means that the criminal suspect or defendant voluntarily and truthfully confesses his crime, and has no objection to the facts of the alleged crime. Acknowledging the main facts of the crime charged, only raising objections to individual facts and circumstances, or expressing acceptance of the judicial organs' determination opinions despite justifying the nature of the conduct, does not affect the determination of "confession". Where a criminal suspect or defendant commits several crimes and only truthfully confesses one or part of the facts of the crime, the whole case is not determined to be "guilty pleas", and the system of leniency in admitting guilt and accepting punishment does not apply, but for the part truthfully confessed, the people's procuratorate may propose lenient punishment, and the people's court may give lenient punishment.

2. "Admission of punishment" can be considered in combination with factors such as apologies

"Admission of punishment" in the leniency system for admitting guilt and accepting punishment means that the criminal suspect or defendant sincerely repents of his guilt and is willing to accept punishment. "Confession of punishment" is manifested in an expression of willingness to accept punishment during the investigation stage; At the stage of reviewing the prosecution, it is manifested as accepting the people's procuratorate's proposed decision to prosecute or not prosecuting, approving the people's procuratorate's sentencing recommendation, and signing a plea and punishment statement; At the trial stage, it is manifested in the confirmation of the voluntary signing of the affidavit and its willingness to accept the punishment. The focus of the "admission of punishment" examination is on the criminal suspect's or defendant's attitude of repentance and repentance, and should be considered in conjunction with factors such as the return of stolen goods, compensation for losses, and apologies. Although a criminal suspect or defendant expresses an "admission of punishment," but secretly colludes in confession, interferes with witnesses' testimony, destroys or fabricates evidence, or conceals or transfers property, and has the ability to compensate without compensating for losses, the system of leniency in admitting guilt and accepting punishment cannot be applied. Where criminal suspects or defendants enjoy the right to choose procedures, and where they do not agree to apply expedited or summary procedures, it does not affect the determination of "admitting punishment."

3. "Leniency" includes leniency of entities and simplification of procedures

Leniency includes both substantive leniency and procedural leniency. "Can be lenient" means that it should generally reflect the spirit of legal provisions and policies, and be treated leniently. Where the nature of the crime and the harmful consequences are particularly serious, the means of the crime are particularly cruel, and the social impact is particularly bad, where the admission of guilt and punishment is insufficient to give a lighter punishment, lenient punishment is not to be given in accordance with law. The overall principle of the lenient range of punishment for pleas is "the earlier the plea of guilt and punishment, the greater the leniency". The common practice is: if the confession is stabilized at the investigation stage, and the guilty plea is accepted and the punishment is accepted, the punishment shall be reduced by up to 30% on the basis of the base sentence; Those who refuse to confess at the investigation stage, and admit guilt and accept punishment at the review and prosecution stage, are reduced by less than 20%; Where a person refuses to confess at the investigation stage or the prosecution review stage, and admits guilt and accepts punishment during a trial, the leniency range shall not exceed 10%.

II. The application of the "plea system" by parties is a key issue that defense lawyers need to pay attention to

According to the understanding of the concept of plea of guilt and punishment in articles 5 to 8 of the Opinions, the leniency system for plea of guilt and punishment applies to any type of criminal case, regardless of the seriousness of the crime; At the same time, pleas and punishments can be applied to the investigation stage, the review and prosecution stage, the first-instance trial stage, and even the second-instance stage, and the sooner the guilty plea and punishment, the greater the possibility of mitigating or mitigating the punishment. In specific cases, defense lawyers shall, through reading files and interviews, form their own defense ideas for the case as soon as possible, predict possible outcomes and sentencing ranges, and provide professional analysis opinions to the parties. For cases where the facts are clear, the evidence is indeed sufficient, and the characterization is accurate, and the parties express their voluntary admission of guilt and punishment, the following issues should be focused on:

1. Shift the focus of defense forward and actively consult with the procuratorial organs

When handling criminal cases, lawyers should first actively carry out procedural defense, apply for bail pending trial or modify compulsory measures, and strive to end the litigation procedure early. Second, full consideration should be given to the simplification of trial procedures that the parties' voluntary admission of guilt may bring, so that the focus of sentencing defense is shifted forward, that is, from the trial stage to the pre-trial procedure, which is mainly focused on the review and prosecution stage, and lawyers should promptly and effectively negotiate with the prosecution on sentencing (including non-prosecution) to achieve the legal effect of leniency for parties.

If the parties choose to apply the plea procedure, the intensity of confrontation between the prosecution and defense will be greatly reduced, and at this time they should communicate with the procuratorate more actively, fully explain certain flaws in the evidence of the case or opinions that may affect the conviction and sentencing, and promote the maximization of the interests of the parties in the process of full consultation and communication with the procuratorate based on the facts of the case and the parties' own circumstances. When formulating sentencing recommendations, procuratorial organs will also fully consider the views and opinions of defense lawyers, and ensure that defense lawyers' rationalization suggestions are reflected in sentencing recommendations to achieve the goal of effective defense.

2. Provide advice without making decisions on behalf of the parties

Defense lawyers shall actively participate in all stages of investigation, review of prosecution, trial, and so forth, and provide appropriate advice to the parties. However, the defence counsel should always be the one who advises, not decides, the choice of procedure. Defense lawyers can analyze the pros and cons for the parties in light of the specific circumstances of the case and help them carefully weigh them, but they must respect the parties' right to choose, rather than simply and rashly making decisions for the parties, let alone force the parties to choose to admit guilt and accept punishment.

3. Avoid parties from admitting guilt and accepting punishment involuntarily

In defense practice, some case-handling personnel may unilaterally pursue the angle of increasing the "rate of guilty pleas and accepting punishment", causing the parties to sign the "Closing Form" of confession and punishment involuntarily, which is obviously inappropriate, even if the defender or duty lawyer is finally allowed to come and sign, it is a formalistic procedure, and it is likely to sacrifice the legitimate rights and interests of the parties without fully listening to the opinions of the defense lawyers. If similar situations are discovered in the course of handling criminal cases, it is even more necessary to communicate the facts of the case with the case-handling personnel and parties in a timely manner to avoid unjust, false and wrong cases.

4. Pay attention to criminal settlement

The leniency system for pleas of guilt and punishment is a participatory judicial system that involves not only criminal suspects and defendants, but also victims. The case-handling organ should not only examine the victim's attitude of remorse, but also examine its actual performance, and whether to apologize and compensate for losses is the most important thing, and the victim and his family members should make reasonable compensation to the victim on the basis of reaching a settlement understanding with the victim, which is a manifestation of the victim's "admission of punishment", therefore, actively urging the victim and the victim to reach a settlement agreement, giving the victim reasonable compensation, and obtaining the victim's full understanding has a positive effect on resolving the contradictions between the two sides and obtaining lenient treatment; In their actual work, defenders should attach great importance to and actively promote this work. Of course, in practice, if the victim consistently refuses to forgive, it will not affect the party's plea procedure.

5. Formulate reasonable trial defense strategies

In criminal defense trials, lawyers acting as defenders should independently perform their defense duties in accordance with the law, and the right to defense is their legal right and obligation, and their exercise of the "right to independent defense" is not a violation of the plea of guilt and punishment. Therefore, no matter what the attitude of the suspect is, the defender can express his opinion independently and is not influenced by the will of the suspect. However, from the perspective of case-handling practice, if the case initiates the plea procedure, then there is basically no deviation in direction in determining the core facts of the case, and the suspect himself has the circumstance of confessing or surrendering. If the appointed defender is not a witness to the signing of the affidavit, then if the evidence is really insufficient and the court or procuratorate tries to communicate with the court or procuratorate to change the content of the indictment or the sentencing recommendation is unsuccessful, re-examine the case or make a substantive not guilty defense. The specific trial defense thinking must be determined based on the evidence in the case, and the defense lawyer should focus the defense on the examination of the evidence and the examination of evidence at trial, although the party's admission of guilt and punishment does not mean that the evidence is free of flaws, if the direction of the defense is not sufficient to prove the facts of the crime or reasonable doubt cannot be excluded, or may constitute other minor crimes, then a good defense effect can still be received.

In summary, as an independent sentencing circumstance, the plea and leniency system activates the space for negotiation and sentencing and increases the flexibility of criminal defense. Defenders shall strive to improve their defense skills, making full use of opportunities for consultation and communication with procuratorial organs to seek lighter sentences for defendants. However, it is also necessary to prevent cases with problematic evidence from being eagerly included in the plea procedure, and if there is obvious room for debate, we cannot blindly compromise or make concessions, and we should earnestly protect the legitimate rights and interests of the parties.

(This article is translated by software translator for reference only.)