Since the Sixth meeting of the Standing Committee of the 13th National People’s Congress made a decision to amend the Criminal Procedure Law of the People’s Republic of China and establish a plea leniency system on October 26, 2018, the plea leniency system has been widely popularized and applied in criminal practice. However, from the perspective of practical effects, although it has indeed achieved the purpose of diverting complexity and simplicity and saving judicial resources to a large extent, there are also cases of abuse and some cases have even deviated from the “principle of compatibility of crime, responsibility and punishment”. This is mainly reflected in four aspects:

I. The “right to appeal without heavier punishment” in plea cases is challenged

      For plea cases, the court adopted the sentencing recommendation of the procuratorial organ. The defendant appeals on the grounds that the sentence was excessive, but the procuratorial organ protests on the grounds that the defendant “repented” and asked for a heavier sentence. Is this the due significance of the “plea leniency system”?

      First of all, some argue that the defendant cannot appeal for the following reasons: once the plea statement is signed, it means the defendant voluntarily accepts the charges and sentencing recommendations. The prosecutor and defendant have entered into a “contract”, and the defendant should abide by it without repentance. If the defendant tries to seek improper benefits through appeal and triggers the second instance, there is a waste of judicial resources and violation of the spirit of the reform of the plea leniency system. To this end, we need to rationally recognize the behavior of the criminal suspect’s signing of the plea statement. In practice, due to the asymmetry of criminal suspects’ legal knowledge and information involved in the case, some duty lawyers’ legal help is in the form, or the procuratorial organ omits the sentencing circumstances. After the signing of the plea statement and the and entry into the trial proceedings, they will find or believe after comparison that the sentencing recommendation is biased; there are also criminal suspects who have confessed and are “willing to accept punishment”, hoping to apply for probation, but the procuratorial organs do not agree, believing that only acceptance of their sentencing recommendations is “admitting the punishment”. Therefore, the suspect’s signing of the plea statement is a “helpless” choice, and they hope to be able to strive for “leniency” at the trial stage. Such circumstances comply with the provisions of Article 201 (2) of the Criminal Procedure Law that the defendant has the right to object to the sentencing recommendation. Even if the Court of first instance adopts the sentencing recommendation, it cannot assert that the defendant has no right to appeal the verdict, because appeal is the legal right of the defendant and the Criminal Procedure Law does not impose any restrictions on plea. Shen Liang, vice President of the Supreme People’s Court, pointed out that “the right to appeal is the basic litigation right of the defendant and must be effectively guaranteed.” After the defendant make an appeal, the principle of “right to appeal without heavier punishment” should naturally apply.

      Secondly, the court adopts the sentencing recommendation by the procuratorial organ. If the defendant only appeals on the grounds that the sentencing is excessive, the procuratorial organ should not easily initiate a protest aimed at sanctioning the defendant’s “repentance” with increased punishment. The defendant’s acceptance of the sentencing recommendation of the procuratorial organ and the signing of the plea statement during the review and prosecution stage do not deny his new understanding of the sentencing recommendation and the right to defend the sentencing during the trial stage. The defendant’s objection to the sentencing recommendation should not be simply characterized as “repentance.” For example: The second paragraph of the crime of illegal intrusion into a computer information system stipulates that if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Although the defendant pleads guilty, it is not clear whether the “circumstances are particularly serious”. After signing the plea agreement, he finds that the “circumstances are not particularly serious” and considers that the sentencing recommendation was excessive. Therefore, he raises an objection, or appeals against the judgment of the first instance. This is a continuation of the objection to the sentencing recommendation. We cannot mistakenly equate “respect for the ruling of the judicial organs from the bottom of our hearts” and “sincere repentance” with the defendant’s non-objection and non-appeal, nor should we regard the defendant’s non-appeal as the expectation of legislation. The defendant’s receipt of a fair trial is the ultimate value of criminal litigation. Our judicial organs cannot understand accepting and obeying sentencing recommendations as the only prerequisite for “leniency”. Although the procuratorial organ has the right to recommend a “lenient” sentence if the defendant pleads guilty and is willing to accept punishment, the defendant still has the right to defend the sentence and enjoy the right to appeal. Vice President Shen Liang of the Supreme People’s Court also pointed out that if the defendant pleads guilty and then files an appeal, the Court of second instance must adhere to a comprehensive review, distinguish between different situations, and make separate judgments strictly in accordance with the Criminal Procedure Law. Where the findings and applicable law are correct and the sentencing is appropriate in the original judgment, it shall reject the appeal and maintain the original judgment. It cannot determine that the judgment of the first instance is indeed wrong and the sentencing is improper and increase the sentence simply because of the defendant’s appeal and the procuratorial organ’s protest.

      Finally, Article 15 of the Criminal Procedure Law stipulates that the criminal suspects and defendants’ “willingness to accept punishment” does not mean that the plea state has the effect of a judgment, because only the court has the final decision on the leniency and the punishment. The right of appeal is the basic litigation right of the defendant, and the judicial organs should respect and guarantee it other than absolutize the validity of the sentencing recommendation.

II. The superiority of defense lawyers over duty lawyers is not fully reflected

      In accordance with Article 174 of the Criminal Procedure Law, in handling of plea cases, if the criminal suspect signs the plea statement, a defender or duty lawyer shall be present to witness. This article lists defense lawyer side by side with duty lawyer, without clearly stipulating that a defense lawyer has a priority over a duty lawyer. As a result, in some plea cases in judicial practice, although the criminal suspect has entrusted a defense lawyer, the case handling personnel did not notify the defense lawyer to be present to witness the suspect’s signing of the affidavit, but it is directly witnessed by the duty lawyer. For example, in a suspected dangerous driving case handled by a local procuratorate in October 2021, although the criminal suspect entrusted a defense lawyer and informed the case-handling personnel, the case-handling personnel notified the duty lawyer to witness the signing of the plea statement, without giving a notice to the defense lawyer. Therefore, the criminal suspect’s close relatives and defenders strongly questioned the legality of the case-handling procedures and used this as an important reason for filing an appeal.

      Since the duty lawyer is provided by the state to offer a kind of legal assistance to a criminal suspect with financial difficulties, he/she is in a complementation to the defense lawyer entrusted by the criminal suspect. Only when the criminal suspect does not entrust a defense lawyer can the duty lawyer be present to witness. If a criminal suspect entrusts a defense lawyer, it is a serious violation of the law to inform the duty lawyer other than the defense lawyer to witness the signing of the plea statement. Although the Criminal Procedure Law stipulates that the signing of the please statement shall be witness by the defense lawyer or the duty lawyer, without emphasizing that the defense lawyer has priority over the duty lawyer, Article 36 of the Criminal Procedure Law clearly stipulates that only if the criminal suspect or defendant has not entrusted a defender and the legal aid organization has not appointed a lawyer to provide him with a defense, the duty lawyer can provide legal assistance to the criminal suspect or defendant. This shows that the law has clarified the principle that defense lawyers are superior to duty lawyers. Article 27 (2) of the Guiding Opinions of the People’s Procuratorate on Sentencing Recommendations for Handling Plea Cases (hereinafter referred to as “the Opinions”) issued by the Supreme People’s Procuratorate on December 3, 2021 also clearly stipulates: If a criminal suspect has a defender, the defender shall be present to witness the signing of the plea statement, and the defender shall not be bypassed to arrange for a duty lawyer to witness the signing on his/her behalf.

      The witness of the signing of the plea statement by the duty lawyer other than the defense lawyer will have a negative impact on the realization of judicial justice. From the perspective of judicial practice, defense lawyers have different opinions on whether the criminal suspect constitutes a crime and whether the penalty should be imposed, and even oppose the application of guilty plea. However, in some cases, when the criminal suspect has entrusted a defense lawyer, the case-handling agency ignores or even rejects the defense lawyer, choosing to had the signing of the plea statement directly witnessed by the duty lawyer. In order to improve the application rate of guilty pleas and improve the efficiency of case handling, prosecutors prefer criminal suspects to plead guilty. Although the different opinions put forward by defense lawyers on the charges of the procuratorial organs may not all be correct, excluding the participation of defense lawyers in the signing of the plea statement will lead to application of the plea leniency system in some cases where the system is actually not suitable for application. The trial procedures for cases of plea leniency will be greatly simplified, and the review and verification of evidence and ascertain the facts of the case will be greatly weakened. If plea leniency system is adopted in cases where it is not applicable, it is likely to cause a major hidden dangers that innocent defendants are wrongly found guilty when they are not or receive heavy sentence when they should be subject to a light sentence. This seriously affects judicial justice and the guarantee of human rights.

      In addition, the duty lawyer does not have the status of a defender, but the defense lawyer enjoys many important rights that are not available to the duty lawyer, such as the right to access to documents, the right to apply for investigation and evidence collection, etc. Therefore, this will seriously affect the duty lawyer’s investigation and verification of the facts of the case, thus directly affecting whether the criminal suspect constitutes the crime charged by the procuratorial organs and whether the procuratorial organs’ sentencing recommendations are appropriate. Therefore, bypassing the defense lawyer in witnessing of the signing of the plea statement may lead to harm to the legal rights of the criminal suspect.

      In summary, although the signing of plea statement with the witness by the duty lawyer other than the defense lawyer only occur in a small number of cases, it violates the Criminal Procedure Law and related judicial interpretations, and has a negative impact on judicial justice and the protection of the legal rights of criminal suspects. Therefore, this practice should be completely eliminated in practice.

III. Lack of correct understanding of the defendant’s repentance after pleading guilty

      The defendant’s repentance after pleading guilty is also a frequent problem in China’s plea leniency system. The defendant’s repentance is mainly reflected in three circumstances:

• After signing of the plea statement in the review and prosecution phase, the defendant objects to the alleged crime or sentencing recommendation during the trial;
• The defendant appeals against the judgment made by the court with the application of the plea procedure on the grounds of innocence or misdemeanor;
• Although the defendant has pleaded guilty, he/she accepts the defender’s defense for innocence or misdemeanor.

      On the one hand, the suspect does not have the right to access to the documents and cannot fully understand the specific circumstances of the evidence; on the other hand, in all aspects of the pre-trial, the suspect has not received sufficient help from defense lawyers. These factors are likely to make it difficult for suspects to make an informed choice on the issue of guilty plea. However, if the defendant can truly understand the actual situation through reading the papers before the trial and get the full help of the defense lawyer, he/she can make a more rational decision on whether to plead guilty. This will not only greatly reduce the possibility of repentance after pleading guilty, but also basically prevent the circumstances where the defense lawyer makes the defense of innocence or misdemeanor. At present, there is such a situation in reality: the defendant who signed the plea statement only receives limited legal assistance from the duty lawyer before the trial. Therefore, it is inevitable that there will be repentance during the trial and the defense lawyer’s defense of innocence and misdemeanor. The judicial organs should rationally control the issue of the defendant’s repentance. In addition, the so-called “consensus” in consultation does not require that the opinions of all parties are strictly consistent on all detailed issues. It is originally a normal that different subjects raise objections to the same issue at different stages of litigation. Whether it is the defendant’s objection, the defender’s defense, or an appeal, when there is a difference from the original charge and the sentencing recommendation, it does not mean that the defendant has repented. It is still necessary to pay attention to safeguarding the defendant’s interest in leniency based on the guilty plea. Article 39 of the Opinions stipulates that in plea cases, if the defendant appeals on the grounds of excessive sentencing, the Procuratorate should not always counterclaim. Only when the defendant’s request for appeal constitutes a repentance which no longer constitutes a guilty plea, is there a possibility of counterclaim. This provision reflects the cautious attitude on the issue of determining repentance.

IV. Whether plea leniency apply to additional sentences at the same time
      In the criminal law, additional penalties for certain crimes can be very severe. For example, the Eleventh Amendment to the Criminal Law amended the “proportional fine” for money laundering to an “unlimited fine”, which eliminated the upper limit of the fine. Although the main sentence was lenient in some cases of guilty pleas, the additional sentence was not lenient. This is particularly reflected in the fines. In some cases of fraud and money laundering, although the sentencing recommendation was lenient for the main sentence, the fines as additional sentences were recommended to be excessive. For the defendant, compared to the unbearable fine, he/she would rather spend a few more years in prison, which would also lead to disobedience to the judgment of the first instance and an appeal. While the plea leniency system is applicable to the main sentence, should it also be applied to the additional sentence? Articles 12 and 31 of the Opinions clarify that the sentencing recommendation includes additional sentences. Under the framework of the plea leniency system, additional sentences have become an indispensable part of the sentencing recommendation, especially the property sentence in the additional sentence. As an important part of “acceptance of punishment”, it directly reflects the criminal suspect’s attitude of repentance and directly affects the consequences of leniency. The procuratorial organs must not only make recommendations on the main sentence, but also on the additional sentence. In the pilot of the plea leniency system, although the court’s adoption rate of sentencing recommendations for plea cases has maintained a high level, in general, the proportion of sentencing recommendations for fixed sentences and additional sentences is not high. This may be due to the ability of the procuratorial organs on the one hand, and on the other hand, the lack of clear sentencing norms for most crimes. The existing sentencing guidelines for common crimes mainly target at the main sentence and basically do not involve additional sentences. Therefore, the leniency of additional sentences cannot be clearly reflected in the sentencing recommendations. I believe that: in order to reflect the principle of “combining punishment with leniency”, when the plea leniency system is applied, the leniency of the main sentence and the additional sentence should be applied simultaneously, so as to achieve the value goal of coexistence of justice and efficiency pursued by the Criminal Procedure Law. Article 33 (4) of the Guiding Opinions on the Application of the Plea Leniency System of the Supreme People’s Court, the Supreme people’s Procuratorate and the three Ministries also clearly stated that “if it is recommended to impose a fine, a determined amount shall be proposed with reference to the leniency range of the main sentence.” It can be seen that the plea leniency system should be applied to additional sentences at the same time.

      We use the plea leniency system to promote the diversion of criminal cases, optimize the allocation of judicial resources, and improve the efficiency of litigation. At the same time, we must also note that this is a criminal policy that combines punishment with leniency and strengthens the judicial guarantee of human rights. Only under the premise of correct understanding and understanding of the system and proper use of the system can we better resolve social contradictions and promote social harmony, thereby realizing the modernization of the national governance system and governance capabilities required by Xi Jinping’s thought of the rule of law.