Research on Establishing a Chinese System for Prosecution-Defense Negotiation

Author: Ji Xiangde
Publisher:
Publish Date: 2006-11-01
Features: The contractual view of criminal procedure is the foundational factor for the emergence and development of plea bargaining; the utilitarian philosophical view is the driving factor; the judicial efficiency view is the inciting factor; the adversarial litigation structure is the supporting factor; and the well-developed right to defense, including the right to silence and the evidence disclosure system, is the guaranteeing factor. Plea bargaining originated in the United States and has been widely adopted in countries such as Canada, the United Kingdom, Germany, Italy, Russia, and Japan. Despite widespread criticism and condemnation, it has maintained a vibrant vitality. The formation and development of this system are undoubtedly intrinsically linked to its unique institutional value, which cannot be matched by other criminal justice systems.
In China, the legal academia has moved from initial general introductions of this system to theoretical debates over whether it should be adopted or not. The judicial practice sector, from its cautious approach in cases like the "Qijiang Rainbow Bridge Case" and the "confidential witness immunity" issue, to the bold experiment by Mudanjiang Railway Transport Court in the "Meng Guanghu Intentional Injury Case," has all revealed the deep concern of litigation law scholars and judicial practitioners regarding whether this system can be adapted to China. The author proposes a criminal justice reform idea of establishing a "Chinese" (Chinese Adversarial Negotiation System). After a careful examination of China's cultural background, judicial conditions, and litigation system, the author systematically argues for the appropriateness of introducing and transplanting plea bargaining from a normative perspective, while also rationally analyzing the existing obstacles within China's current judicial system from a realist perspective.
The author points out that the construction of the Chinese requires the realization of the contractual concept and criminal value ideals of the Chinese public, as well as multidimensional reforms in the models of investigative power, prosecutorial power, judicial power, and defense rights, the status of defendants and victims in criminal proceedings, and the concepts, powers (rights), and institutions of evidence disclosure, the right to silence, and other criminal litigation systems. The author emphasizes that the successful introduction of the right to litigation theory in China's criminal procedure and the profound transformation of the judicial system under political reform are two indispensable fundamental factors for establishing the Chinese.
The successful cross-over of plea bargaining in the two legal systems and the significant transformation of China's economic system demonstrate that, in China's criminal justice reform, rational elements of foreign criminal litigation systems can be fully absorbed through rigorous institutional design, without being confined to the background of legal systems or passively waiting to hinder judicial institutional reform. The Chinese should rely on a litigation model that combines the strengths of both adversarial and inquisitorial systems, with fairness as the fundamental legal concept and efficiency as a coexisting principle. The bold exploration and meticulous arguments by scholars in the theoretical field, as well as the innovative and courageous practices by decision-makers in the practical field, are the immediate causes for the emergence of this model and the Chinese.