ZHAO Heng*

 

Abstract: In the context of the more frequent application of the leniency system for pleading guilty and accepting punishment, the connotations of the rules on victim involvement should be enriched in the 2018 Criminal Procedure Law. Victims deeply influenced by the concept of cooperative justice will also have an intention to cooperate, thus resulting in a rationale for victims’ cooperation. Victims’ cooperation features a subjectivity of interactivity, understanding, and constraint. This kind of cooperation faces the accused, the procuratorial organ, and the court. The jurisprudential function of the rationale for cooperation of victims is embodied in such aspects as recognizing the victims as eligible subjects, enhancing the legal force of the recognizance in a case of pleading guilty and accepting punishment, and consolidating the legitimate basis for victim to obtain legal assistance. Oriented to protecting right of action of the victim, understanding and developing the rationale for the cooperation of the victim can start by reaching a judicial consensus on the “two limits” principle, optimizing the right of action system for victims, achieving the interconnection of multi-level litigation systems, and improving the rules on lenient punishment to enrich the plan for protecting victims’ right of action in cases of pleading guilty and accepting punishment.

 

Keywords: victims · right of action · leniency system for pleading guilty and accepting punishment · concept of cooperative justice

 

 

In criminal prosecutions, full protection of the legal rights of victims as the subjects of litigation is an important measure to enhance the modernization of human rights protection in the field of criminal justice in China. In recent years, in the context of comprehensively deepening judicial reforms, with the widespread application of leniency for those pleading guilty and accepting punishment, the public have gradually recognized the unique social governance value of the leniency system in saving judicial resources, resolving social conflicts, reducing social confrontations, and promoting social harmony.¹ Reformers attach great importance to protecting the rights of victims in cases in which the offender pleads guilty and accepts punishment, particularly, regarding compensation and settlement as the main indicators of the offender’s confession and repentance. Both the 2018 Criminal Procedure Law of the People’s Republic of China (“the 2018 Criminal Procedure Law”) and the 2019 Guiding Opinions on the Application of the Leniency System for Pleading Guilty and Accepting Punishment (“the 2019 Guiding Opinions”) fully continue the basic rules of the previous pilot documents, that is, to focus on “listening to the opinions of the victims” and appropriately promote understanding and settlement. Also, in accordance with the relevant laws and judicial interpretations, the victim’s dissent does not affect the application of the leniency system by the case-handling organ. In this regard, it is commonly agreed that the leniency system ensures that the victim effectively participates in the state’s litigation against the accused.² However, it should also be pointed out that in practice, due to some shortcomings in the legislative rules and practical operations, there is still room for improvement in the protection rules for the right of action of victims in cases involving pleading guilty and accepting punishment.³ In order to acquire the legitimacy of simplifying or even omitting the litigation process, the state has gradually given the accused more and more litigation rights. But the state also needs to consider and balance the victim’s litigation needs.⁴ In China, it is necessary to further enhance the participation of victims in cases involving pleading guilty and accepting punishment, so as to encourage victims to voluntarily accept the results of judicial judgments, thereby strengthening the basis of the victims’ trust in criminal justice. Of course, it is a problem throughout the world how to safeguard the legitimate rights and interests of victims in the expedited mechanism for cases where the offender is granted leniency in return for pleading guilty.

 

In the field of criminal justice, understaffing has become a more and more serious issue. For this reason, China is vigorously implementing a leniency system for those offenders who plead guilty and accept punishment. This system is characterized by a simplification of procedures, but not at the cost of judicial justice. In particular, no matter how the litigation is simplified, it is necessary to construct a minimum due process, for the accused and the victim. Therefore, how to improve the efficiency of handling criminal cases while protecting the legal rights of victims has become a theoretical and practical problem that needs to be urgently resolved. In general, the leniency system of pleading guilty and accepting punishment involves provisions on the protection of victims’ rights at the legal and normative level. However, relevant laws are not being implemented as expected. In particular, the case-handling model based on “listening to opinions” does not substantially guarantee the role of the victim as a subject of litigation participating on equal terms in the leniency granted the offender on pleading guilty and accepting punishment. First, the legal force of “listening to opinions” is unclear, and the case-handling organ only undertakes the obligation of “listening,” but not of “accepting.” Second, the victim’s opinions have limited influence on how the procedures are applied and the punishment results.⁵

 

In this regard, we should be keenly aware that due to the complicated influence of the concept of cooperative justice in criminal proceedings in which litigation activities have been greatly simplified or even omitted, the victim and the accused participate in litigation in ways undergoing changes. For example, by pleading guilty and accepting punishment, the accused becomes a “cooperator” in a non-adversarial litigation model.⁶ Correspondingly, the concept of cooperative justice has also changed the role of the victim as a subject of litigation. In other words, in cases involving pleading guilty and accepting punishment, both the accused and the victim become “cooperators.” This is the result of the victim having no choice but to adjust the way of participation in justice when facing the reform of the trial system based on confession of guilt.⁷ In view of this, the author first attempts to put forward a rationale for victims’ cooperation in cases involving pleading guilty and accepting punishment that conforms to the concept of cooperative justice; examines the relationship characteristics of victims’ cooperation; explores the guiding value of this rationale in order to improve the leniency system for pleading guilty and accepting punishment and contributes diversified development approaches to improve the system guaranteeing victims’ right of action. Of course, before the formal discussion, it needs to be noted that, for the purpose of this article, the explanation and analysis are mainly in the field of public criminal prosecutions.

 

 

At present, the 2018 Criminal Procedure Law does not provide clear provisions on whether the victim can participate in the recognizance in a case of pleading guilty and accepting punishment. In practice, people with a negative viewpoint ignore the victim’s actual need to participate in the litigation process, express intentions, and obtain relief in cases involving pleading guilty and accepting punishment. This cannot provide sufficient justification for the system of pleading guilty and accepting punishment to simplify and even omit litigation activities. Therefore, we need to seek a rationale for victims’ cooperation which is in line with the concept of cooperative justice, related to the recognizance of prosecution and defense, and concerned with the victims’ right of action.

 

 

The so-called rationale for victims’ cooperation refers to the reason and basis for satisfying the need for reform in cases involving pleading guilty and accepting punishment in order to protect the victims’ right of action. As criminal procedures are simplified and some of them are even omitted in judicial practice, the victim changes the way of participating in case handling activities before and at the trial stage, in order to make up for these losses through compensation or indemnity as soon as possible by abandoning some litigation rights (such as the right to file incidental civil actions and file counter appeals) while understanding and knowing that the relevant case is subject to the leniency system of pleading guilty and accepting punishment and that it is to obtain a litigation result that is conducive to fully protecting their legitimate rights and interests. In accordance with the legislative rules of the 2018 Criminal Procedure Law, especially the expedited procedures omitting court investigations and court debates, the rationale for victims’ cooperation is mainly applicable to expedited procedures and some summary procedures. Obviously, this is different from the framework of rules for victims’ participation in litigation activities under the concept of the traditional adversarial justice. Both the accused and the victim substantively renounce their rights at the pre-trial stage to meet the requirements of cooperative justice. The reform plan of the leniency system of pleading guilty and accepting punishment should not only improve the efficiency of case handling, but also ensure the fairness of case handling results. Therefore, if the state intends to achieve the reform goals of saving judicial resources, optimizing the allocation of powers, and improving the efficiency of litigation, it needs to fully consider the rights and interests of the accused and the victim. In particular, once the victim does not accept the results of the cases involving pleading guilty and accepting punishment, it is likely to affect the practical effect of the application of the leniency system. From this perspective, the rationale for victims’ cooperation is another form in which the concept of cooperative justice affects the changes in powers and functions of litigation subjects, which corresponds to the rationale for the accused’s cooperation.

 

In criminal litigation activities, as the accused participates earlier in litigation, the victim similarly also undergoes a shift from trial presence to pre-trial presence. Take the expedited procedure as an example. First, the law stipulates that even if the victim raises objections to the case-handling judicial organ’s application of the leniency system of pleading guilty and accepting punishment, this will not affect how the case-handling organ applies the system. Second, it is often difficult for the victim to participate in court investigations, court debates and other procedures, thereby making it difficult for the victim to fully exercise certain litigation rights, such as the right to ask questions and the right to make a statement. Then, in order to balance the relationship between judicial justice and litigation efficiency, the state needs to pay attention to the complex influence of the concept of cooperative justice on the relationship between the victim and the accused, and resolve the contradiction between the two at the pre-trial stage as much as possible so as to form a new type of relationship for interaction and cooperation between the victim and the accused. This is not only a process of exploring how to form a cooperative criminal justice model from the perspective of litigation subjects, but also a process of adjusting the relationship between “insiders” and “outsiders” and promoting a more inclusive cooperative criminal justice system. It can be seen that where the leniency system of pleading guilty and accepting punishment applies, the victim has also turned to become a “cooperator” similar to the accused.

 

However, unlike the accused, who has the choice whether to plead guilty or not, the victim is in a relatively passive position. That is because once the accused has pleaded guilty and accepted punishment, the victim has to demonstrate cooperation by renouncing their rights. Therefore, the leniency system of pleading guilty and accepting punishment has not only changed the way victims participate in criminal proceedings, it has also made it possible for victims to obtain the right to substantially influence the process of criminal proceedings. Compared with other litigation procedures that don’t involve cases involving pleading guilty and accepting punishment, the victim can obtain the following benefits of the right of action in cases involving pleading guilty and accepting punishment. First, the victim does not have to suffer from anxiety and worry associated with waiting for the outcome of the case because the accused will plead guilty before a trial commences. Second, it reduces the risk of secondary harm due to acts such as testimony. Third, the victim can timely obtain compensation and reach a settlement or understanding agreement and restore damaged social relations.⁸ It is easy to see the benefits the victim can obtain by renouncing the right to file incidental civil actions and related legal rights, and these benefits actually correspond to the legal consequences of the accused renouncing rights.⁹ It is precisely because the victim participates in the recognizance as a “cooperator” and exerts a corresponding influence on the recognizance result that the leniency system of pleading guilty and accepting punishment allows both the victim and the accused to share the power of the state to prosecute and punish to a certain extent. This in turn makes the result of the penalty become a matter to be decided jointly by the state, the victim, and the accused, rather than just a matter decided by the public authorities of the state alone.¹⁰

 

 

Globally, thanks to the concept of cooperative justice, more and more countries attach importance to the practical effects of the expedited mechanism for cases involving pleading guilty in order to cope with the challenges brought by insufficient judicial resources to criminal justice. As mentioned above, as criminal procedures become increasingly simplified, victims face an increasingly more disadvantaged position in litigation, that is, victims are usually excluded from the expedited mechanism for cases involving pleading guilty. For example, the guilty pleas negotiation procedure in Germany, the plea bargaining procedure in the United States, and the pre-trial confession negotiation procedures and punishment order procedures in France are all characterized by the following tendency: the victim is prevented from participation while the accused is more than welcome to participate in it.¹¹ Take France as an example. Its pre-trial confession consultation process mainly involves prosecutors, the accused, and lawyers, but does not provide rules and conditions for the participation of victims. It therefore fails to form an open and diverse structure for participation by subjects. This makes it difficult to effectively resolve the dispute between the accused and the victim, and ends up intensifying the contradictions.¹² In this context, scholars in some countries have begun to reflect on the issue and attempted to propose plans that consider the interests of both the victim and the accused. One of them is characterized by decentralization and privatization of national penal power (“decentralization of penal power”). According to the so-called “decentralization of penal power,” since the victims suffer from legal interest infringement, they must have the opportunity to restore their interests through the litigation procedure. For this purpose, the state decentralizes part of the penalty power and creates opportunities for the victims to participate in the litigation procedure and obtain substantive compensation.¹³ This concept reflects on the harm of adversarial justice that over-exaggerates the antagonistic relationship between the accused and the victim. Based on the concept of “decentralization of penal power,” Germany has introduced a “balanced negotiation and restoration between the offender and the victim,” seeking to build a platform for negotiation and communication and considering the common interests of both the accused and the victim as subjects. The essence of this system is embodied in the guilty plea negotiation procedures and other aspects. Of course, the accused still needs to repent sincerely even if they obtain the benefits of negotiation after communicating with the victims. This means that the state does not need to impose excessive penalties as special prevention measures.

 

This preliminary comparative analysis shows that after affirming the positive effect of the expedited mechanism for cases involving pleading guilty, many countries are also dealing with its complex impacts. For example, in response to the ineffective participation of victims, some countries have explored plans to introduce the concept of restorative justice into cooperative justice. This not only helps reduce the antagonistic relationship between the accused and the public authorities, but also helps alleviate the conflict between the accused and the victim, so as to affirm the victims’ role as a subject in participation in the case handling mechanism, and ensure the substantial legal force of litigation behaviors such as expressing opinions on the case handling process and its results. In this regard, the main purpose of these reform ideas in other countries is to affirm and encourage victims to become “cooperators” and guide them to actively exercise their rights to be informed about the case, express their opinions, have their losses made up for, and obtain relief, so as to broaden the victims’ participation in the expedited mechanism for cases involving pleading guilty.

 

In China, in accordance with the situation of the leniency system of pleading guilty and accepting punishment, reformers also need to combine the concept of cooperative justice with that of restorative justice, and guide the two concepts to merge with and promote each other. Guided by this principle, China should revise the traditional theory of public cooperation and affirm the position of the victim as a participant in the recognizance, instead of simply antagonizing the accused and the victim. After all, only by urging the victim to cooperate with the public authorities and the accused can that process really help resolve disputes and contradictions.

 

 

In the context of understanding that the victim tends to be a cooperator in the leniency system of pleading guilty and accepting punishment, it is necessary to further analyze the salient characteristics and specific aspects of the victim’s cooperation.

 

 

As criminal procedures are greatly simplified, the victims are also expected by the state to choose “cooperation.” Therefore, in cases involving pleading guilty and accepting punishment, the cooperation of victims is embodied in three dimensions. First, victims can exercise some rights that they cannot otherwise enjoy in cases not involving pleading guilty and accepting punishment, such as the right to participate in the recognizance. Second, after reaching cooperation results, they should not arbitrarily go back on their word, especially by filing incidental civil actions at will unless a statutory situation occurs, since the victims have agreed to cooperate. Third, the specific plans for victims to influence the litigation process are fine-tuned, thereby, for example, defining the relationship between listening to opinions and participation in recognizance activities and clarifying the interconnection plan between the leniency procedures for pleading guilty and accepting punishment and the criminal settlement procedure. In a nutshell, victims’ cooperative behaviors have the following three distinctive features.

 

1. Interactivity. When guiding the offender to actively compensate the victim, attention should be paid to the communication and dialogue between the victim and the offender. It is a way to rebalance the legitimate rights of the victim and the offender as subjects of the litigation. Generally speaking, interactive “cooperation” communicated and completed between the victim and the offender results in consensus regarding compensation, return of ill-gotten gains, apology, and promise to engage or not engage in a certain behavior. As a result, the victim can obtain the right to participate in the recognizance, or at least be present at the time of recognizance. By granting victims the above rights, the problem of inaccessibility resulting from fully excluding victims from recognizance can be overcome, thereby enhancing the transparency of recognizance, ensuring that interested parties in litigation are able to supervise the litigation behaviors of the case-handling organ, especially procuratorial organs, and thus enhance the degree of trust by victims in public power activities such as recognizance of pleading guilty and accepting punishment and proposals regarding the measurement of penalty. Correspondingly, the public authorities are obligated to inform the victim about recognizance, ensure the victim’s timely participation, and provide any necessary legal assistance. Taking right of the victim to participate in the recognizance of cases involving pleading guilty and accepting punishment as an example, the procuratorial organ should, in principle, require the accused to communicate with the victim on compensation, apology, and other issues before formal recognizance. At the same time, the victim has the right to be present and express opinions on the leniency of the punishment and relevant issues of recognizance. Of course, the victim shall not interfere with the recognizance activities. It can be seen that the case-handling organ actually participates in the interaction and communication between the victim and the accused. To a certain extent, this is also a process in which the public authorities can strengthen contact with the victim.

 

2. Understanding. When the accused expresses a cooperative position by pleading guilty and accepting punishment or the victim expresses a willingness to cooperate by reaching an understanding or accepting a judgment, the state should allow the victims to communicate with the accused. The state not only needs to ensure that the accused is aware of voluntary renunciation, but also needs to interpret the law on a timely basis to ensure willingness and understanding of their cooperation on the part of the victim. Meanwhile, the victim should accurately understand the legal consequences of renouncing specific litigation rights, such as not requiring full participation in court trials, not filing private prosecutions or complaints after the procuratorial organ decides not to prosecute or after the court’s judgment, and not filing criminal incidental civil actions. Of course, in terms of the judgment of understanding, reformers need to set different conviction elements and judgment standards in accordance with the different ways of participation of the victim and the accused and their litigation rights.

 

3. Constraint. Affirming the role of the victim as a cooperator in the leniency system of pleading guilty and accepting punishment means that the process and results of cases involving pleading guilty and accepting punishment should also be recognized and accepted by the victim. In other words, the implementation of the leniency system is not only a matter of the state authorities and the accused, but also a matter of victim’s participation and support. Whether it is the recognizance of pleading guilty and accepting punishment, proposals for the size of penalty, the application of procedures, or the decision not to prosecute, they all reflect the wishes of the victim to a certain extent. Taking the recognizance of pleading guilty and accepting punishment and proposals for the measurement of penalty as examples, the above two legal documents are believed to mainly reflect the will of the accused and the procuratorial organ. In fact, this is not comprehensive. Considering how these legal documents are formed, they should be considered to have taken care of the victim’s demands. The 2018 Criminal Procedure Law directly stipulates that the application of the leniency system for pleading guilty and accepting punishment is not subject to the victim’s consent. However, if the victim does not agree with the results of the case-handling organ, the victim is likely to seek private remedies through other channels, which might lead to potential contradictions and conflicts. Therefore, respecting the cooperative role of the victim in a case in which the offender pleads guilty and accepts punishment means that the case-handling organ is required to incorporate the position and demands of the victim into the case handling process and the results. As a result, the victim should recognize and accept these decisions. In particular, it is not appropriate for the victim to go back on their words arbitrarily regarding the return of ill-gotten gains and restitution, and compensation for losses. For example, they should not demand a higher amount of compensation after receiving compensation, or re-file incidental civil actions, or appeal to the procuratorial organ or the court after the court’s judgment demanding a heavier punishment. It can be seen that in accordance with the general legal principle of equal rights and obligations, the victim has obtained more room for participation in the leniency procedure of pleading guilty and accepting punishment because of their role as a cooperator and therefore should bear the corresponding litigation obligations. The resulting program of new rules can promote the orderly application of the leniency system of pleading guilty and accepting punishment.

 

 

A discussion of the legitimacy of the state’s lenient punishment from the perspective of the accused’s renunciation of rights can highlight the legal role of the accused as a subject of the litigation.¹⁴ Correspondingly, the victim who has a direct interest in the handling of a criminal case and accepts the decision in a case involving in which the offender has pleaded guilty and accepted punishment in fact has given up certain litigation rights. This requires the state’s public authorities to have taken care of and respected the victim’s actual appeals and needs when completing the plea process and punishment activities. From this point of view, the victim’s choice of cooperation not only concerns an accurate understanding of the changes in the criminal procedure and the status of participation, but also concerns the appropriate balancing of protection and relief of the victim’s own rights and interests. Specifically, the behavior of the victim include but are not limited to accepting the behaviors of the accused, such as an apology or the return of ill-gotten gains and restitution and other punishments, agreement with the recognizance and the proposals for the measurement of penalty by the procuratorial organ, and accepting the judgment made by the court applying the leniency system on acceptance of a guilty plea and punishment. Therefore, in a nutshell, the victim’s cooperation is with the accused, the procuratorial organ, and the court.

 

 

In cases involving pleading guilty and accepting punishment, both the victim and the accused have the status of cooperator. Specifically, the victim’s cooperation with the accused is mainly reflected in the following four aspects.

 

First, facilitation is made for the accused to meet the statutory conditions for accepting punishment. On the basis of the “willingness to accept punishment” stipulated in Article 15 of the 2018 Criminal Procedure Law, the 2019 Guiding Opinions further fine-tuned the conditions and standards for accepting punishment. In particular, the 2019 Guiding Opinions reiterate the criteria for judging the repentant attitude and performance of the accused, requiring the case-handling organ to consider factors such as the return of ill-gotten gains and restitution, compensation for losses, and apologies, and focus on situations where the accused has the ability to compensate, but refuses to do so.¹⁵ As the leniency system for pleading guilty and accepting punishment is more widely applied, reformers have increasingly emphasized its role in the effectiveness of social governance. Therefore, if the victim no longer insists on opposing and excluding the accused and is willing to communicate with the accused about agreements on matters such as compensation and apology, then this will make the accused more likely to meet the legal conditions for accepting punishment and provide prerequisites for the accused to seek lenient punishment.

 

Second, the willingness of victims of different crimes to cooperate varies. Generally speaking, although the accused is willing to plead guilty and accept punishment and intends to compensate the victim, this does not mean that the victim will inevitably choose to cooperate. This is because the crime and the nature of it directly affect the willingness of the victim to cooperate and the possibility of cooperation, of which the case-handling organ should have a clear understanding and judgment. In practice, according to research and feedback, the probability of cooperation between the victim and the accused is high in crimes involving property violations, but low in crimes involving personal injury. Therefore, the case-handling organ needs to judge the possibility of the victim’s cooperation based on the case in question, and adopt targeted case-handling strategies. For example, in some cases, the case-handling organ can invite the victim to participate in mediation or forgiveness activities, so that the accused can deeply realize the harmfulness of their criminal behavior and plead guilty and repent. Another example is to allow victims of certain crimes to participate in the recognizance to ensure that the victims directly understand and recognize the process of the accused’s pleading guilty and accepting punishment. This can achieve the purpose of interactions and dialogues between the victim and the accused at the pre-trial stage, and can also help the case-handling organ to accurately judge how sincere the accused’s confession and repentance are.

 

Third, the victim’s cooperation also varies in different litigation stages and proceedings. As mentioned above, the victim is relatively passive when choosing to cooperate, because the prerequisite for the application of the leniency system is that the accused pleads guilty and accepts punishment, rather than the victim agrees to it. If the accused truthfully confesses and is willing to accept punishment, but the victim insists on an adversarial stand demanding severe punishment, then the victim is likely to face insufficient participation and insufficient protection of rights and interests. However, even if the victim consent system is applicable, the victim’s cooperative behavior varies due to differences in the litigation stages and procedures. For example, in the expedited proceedings, when the court adopts “centralized trials” and “centralized judgments” on the basis of omitting court investigations and court debates, the victim usually needs to focus on pre-trial cooperation, participating in the communication processes for settlement and forgiveness and expressing opinions on statutory matters. However, in some cases where the victim only agrees to a settlement at the trial stage, the court will generally apply summary procedures or ordinary procedures in which the victim can participate in the trial and express appeals at the trial site. Therefore, with a view to mobilizing the victim’s enthusiasm for cooperation and ensuring that the victim cooperates effectively, reformers need to fully consider the types of cases and litigation procedures, and improve a multi-level litigation system for criminal cases that helps guide the victim and the accused to form a cooperative relationship.

 

Fourth, appropriate adjustments should be made to the rule that the victim’s objections do not affect the applicability of the leniency system for pleading guilty and accepting punishment. At present, neither the 2018 Criminal Procedure Law nor the 2019 Guiding Opinions allow victims’ objections to affect the application of the system. Although this legislative thinking is rational in its own way, it is undeniably necessary to adjust this legislative rule according to practical needs to consolidate the legitimacy of the victim’s acceptance of the results of cases involving pleading guilty and accepting punishment. For this reason, on the premise of accurately understanding the fact that the victim tends to cooperate in cases involving pleading guilty and accepting punishment, the dual legal force should be determined for the victim’s objection to the application of the leniency system of pleading guilty and accepting punishment. First, for certain crimes, especially those involving personal injury, if the victim raises a clear objection, the case-handling organ needs to carefully consider whether to apply the leniency system for pleading guilty and accepting punishment, even if the accused is willing to plead guilty and accept punishment. Of course, the application scope should be limited. Second, for other criminal cases, the objection of the victim in principle should be considered and produce a result, that is, the case-handling organ should listen to the opinions of the victim and consider them in accordance with the law. This binary approach can enhance the victim’s litigation status, encourage the accused to compensate more actively the victim’s losses of legal interests, and avoid as much as possible secondary conflicts arising from case handling behaviors.

 

 

In a modern criminal prosecution system that follows the principle of “public prosecution before private prosecution,” the victim generally cannot prosecute in person, and the interests of the victim and the procuratorial organ that initiates public prosecution are not completely the same. In some cases, the victim’s behavior of expressing objections is not entirely in the public interest. This is particularly the case in the expedited mechanism for cases involving pleading guilty and accepting punishment. By taking advantage of various litigation mechanisms featuring lenient punishments, the case-handling organ encourages the accused to plead guilty, improves the efficiency of litigation, and reduces the heavy burden of litigation. The victims mainly hope to have their losses compensated and protect their rights and interests as much as possible and impose as severe punishment on the accused as possible. This is a general law in the field of criminal justice. With regard to the leniency system of pleading guilty and accepting punishment in China, the rule program for “listening to the opinions of the victim” set out in Article 173 of the 2018 Criminal Procedure Law cannot effectively balance the relationship between the victim seeking protection of interests and the procuratorial organ wanting to promptly close the case.¹⁶ In this regard, the procuratorial organ needs to perform not only public prosecution duties, but also legal supervision duties. As a more reasonable solution, the procuratorial organ should strengthen supervision of the public security agency’s listening to the opinions of the victim, and enhance the victim’s participation in the investigation stage; and the procuratorial organ should inform the victim of the leniency system for pleading guilty and accepting punishment in accordance with the law before the accused signs the recognizance document for pleading guilty and accepting punishment. Specifically, the scope of present subjects during recognizance should be broadened. For cases in which the victim meets the requirements for presence during the recognizance, the procuratorial organ can notify the victim to be present. In addition, whether opinions are expressed on the spot, telephone calls, or through a written communication, for a case in which the victim makes excessive claims, the procuratorial organ should judge whether this is a case that requires the victim’s consent. If not, the procuratorial organ needs to make an appropriate distinction in terms of the degree of lenient punishment.

 

 

As the case is prosecuted, the court needs to decide whether to apply the leniency system of pleading guilty and accepting punishment. According to the data of the Report of the Supreme People’s Procuratorate on the People’s Procuratorates’ Application of the Leniency System of Pleading Guilty and Accepting Punishment(2020), from January 2019 to August 2020, 1,855,113 people in 1,416,417 cases were applicable to the leniency system of pleading guilty and accepting punishment, with the number of the people accounting for 61.3 percent of the total number of criminal offenders in the same period; expedited procedures 27.6 percent; summary procedures 49.4 percent; and ordinary procedures 23 percent, a decrease of 20 percentage points from 2018. The above-mentioned data shows that the court has processed a considerable number of criminal cases through the leniency system of pleading guilty and accepting punishment, with expedited procedures and summary procedures accounting for nearly 80 percent of the total cases. In this context, considering the situation of simplified trials, the victim will either not participate in the trial, or participate in the trial only in a limited scope. Therefore, the judge usually understands and determines the victim’s willingness to cooperate and the situation of cooperation by considering the evidence and materials regarding the accused’s pleading guilty and accepting punishment, proposals for the measurement of penalty made by the procuratorial organ, and the relevant documents that the victim might submit. This practice is the result of the effort to ensure the efficiency of the trial. However, this approach also brings some problems. For example, when hearing cases under expedited procedures in a centralized manner, judges may not have enough time to understand the true intentions of the victims. Taking into account the fact that guiding the judge to understand the victim’s cooperation in a timely manner is a prerequisite for ensuring the authenticity of the victim’s position of cooperation to the judge, it is necessary to explore programs for the victim to submit written opinions in cases involving pleading guilty and accepting punishment, allow the victim to learn about the case and participate in recognizance activities at the pre-trial stage, and submit written opinions so that the judge can fully understand the views and positions of the victim during the trial. In addition, in the future, reform measures can also be made to guide judges to intervene in pre-trial recognizance activities in advance, involve judges and victims as participants in recognizance activities, and further improve the level of quasi-litigation of pre-trial activities.¹⁷

 

 

In the field of deepening the application of the leniency system for pleading guilty and accepting punishment, clarifying the cooperation status of the victim does not mean that the victim participates in all aspects of criminal proceedings, nor does it mean that the victim can arbitrarily influence the litigation behavior of the state’s public authorities, but that the case-handling organ should be fully aware of the victim’s status as a subject of litigation and the victim’s rights and obligations, respect the victim’s willingness to participate in the simplified procedure, and pertinently adjust and endow the victim with corresponding litigation rights. Therefore, from this perspective, the rationale for the cooperation of the victim has a multi-dimensional reform guidance value.

 

 

Although the victim is the ex-officio subject of the criminal proceedings, in the context of the application of the leniency system for pleading guilty and accepting punishment, there is support for the view that it is inappropriate for victims to have a substantial influence on the negotiation process for the purpose of preventing changes in their subjective emotions from leading to arbitrary changes in the negotiation process.¹⁸ Besides, it has also been pointed out that the victim’s request is strongly personal and often diverges from the case-handling organ, and that in cases of pleading guilty and accepting punishment, it is sufficient to endow the victim with the right to express his or her opinion, and the case-handling organ is not bound by the victim’s opinion when making its decision.¹⁹ The above-mentioned representative views express the concern that the victim affects the process of application of the leniency system for pleading guilty and accepting punishment and try to avoid such influence from the perspective of limiting the procedural rights. However, it must be admitted that these views actually weaken the subjective position of the victim in handling cases of pleading guilty and accepting punishment, and also excessively restrict the scope of the victim’s litigation rights. This is the result of deliberately pursuing the litigation efficiency of the leniency system for pleading guilty and accepting punishment, but to a greater extent ignores the following problem: the case processing decision cannot be approved by the victim, which is obviously likely to trigger new conflicts and disputes, and is also not conducive to ensuring the actual quality and effectiveness of the case processing. The reason for the above view is that people overlook the impact of the cooperative justice concept on the way the victim participates, that is, the reform situation in which the criminal litigation link is greatly simplified also prompts the victim to change the confrontational stance in time, no longer relying on obtaining relief at the trial stage, but participating in the litigation activities focused on the recognizance activities at the pre-trial stage and at the same time obtaining the opportunity to make up for losses and seek relief at the pre-trial stage. As can be seen, the rationale for the victim’s cooperation helps us redefine the status of the victim in cases of pleading guilty and accepting punishment, i.e., as an eligible litigant who actively participates and expresses claims, rather than just passively presenting views. Therefore, the victim should not be excluded from the leniency process for pleading guilty and accepting punishment, on the contrary, the victim should be integrated into the pre-trial litigation stage as much as possible, especially in terms of the recognizance in a case of pleading guilty and accepting punishment and sentencing recommendations, taking into account the type of proceedings and the specific circumstances of the case. Of course, in expedited and partial summary proceedings, the victim is mainly involved at the pre-trial stage of proceedings and complete acts of understanding and reconciliation and approval of leniency decisions, and subject to the goal of litigation efficiency and the simplification of the litigation process.

 

 

According to the established views, we usually examine the legal effect of the recognizance in a case of pleading guilty and accepting punishment from the perspective of the accused as the subjects of litigation, in particular, the binding effect of the recognizance on the accused and the judiciary. For example, once the accused has signed the recognizance at the pre-trial stage and the court has made a decision within the scope of the recognizance, the accused should not appeal.²⁰ Combined with the rationale for the victim’s cooperation, it is easy to see that the above view is biased, i.e., the case is treated only as an act between the state and the accused, ignoring the necessity and legitimacy of the victim’s participation. This is a product of the traditional competitive litigation model, while the reality is that with the gradual elevation of the status of the victim in litigation, the victim should participate in the proceedings and need to participate substantially in the proceedings, which has become an essential element of the modern rule of law in criminal cases.²¹ This cannot be ignored in the field of cooperative justice concept under the influence of the leniency system for pleading guilty and accepting punishment. Therefore, the role of the victim as a source of opinions should be changed, so that he or she can become a cooperator in the expression of claims and the protection of interests, and the willingness and position of the victim can be reflected in the outcome of lenient punishment. This reform idea not only improves the legitimacy of the system of lenient punishment in cases of pleading guilty and accepting punishment, but also further eases the tension between the state’s public authorities and the victims. This means that the lenient punishment results contained in the recognizance in a case of pleading guilty and accepting punishment and the sentencing recommendation or the decision not to prosecute and other legal instruments not only reflect the willingness of victim not to appeal, but also require the accused and the case-handling organ to undertake the corresponding litigation obligations — for the accused, the commitments made to the victim needs to be fulfilled in a timely and comprehensive manner, especially the content of compensation, otherwise leniency should not be forthcoming; for the case-handling organ, it needs to ensure the effective participation of the victim in accordance with the law, but also needs to urge the accused to fulfill any due commitments on time. This is the key path to overcome the formalization of victim participation. Further, starting from the level that the recognizance and the sentencing recommendation reflect the willingness of the victim, it is also possible to regulate the working mechanism of the procuratorial organ to adjust the sentencing recommendation at the trial stage. This is because according to Articles 173 and 201 of the 2018 Criminal Procedure Law, among others, the procuratorial organ shall hear the views of the victim if it prepares sentencing recommendations at the pre-trial stage, but is not required to hear the views of the victim a second time if it adjusts sentencing recommendations at the trial stage. With regard to this legislative rule, if the procuratorial organ adjusts the sentencing recommendation at the trial stage without hearing the victim’s opinions, especially if the sentencing recommendation is adjusted from heavier to lighter, it is likely to trigger the victim’s dissatisfaction. This is the inevitable consequence of excluding victims from the process of forming the outcome of leniency. Therefore, with a view to strengthening the legal effect of recognizance in a case of pleading guilty and accepting punishment and their results,the procuratorial organ and court should improve the mechanism for adjusting sentencing recommendations on the basis of communication and coordination, i.e., the views of victims should be included in the consideration of whether and how to adjust the sentence.

 

 

The reason why the leniency system for pleading guilty and accepting punishment has been universally applied and has played an irreplaceable role in streamlining cases, improving the efficiency of litigation and optimizing the allocation of authority is not only due to the initiative of the accused in pleading guilty and accepting punishment, but also due to the understanding and support of the victim. In the existing reform context, the state should both emphasize the significance of the act of the accused pleading guilty and accepting punishment, and value the contribution made by the victim to this end. In summary, for the driving forces behind the transformation of the criminal procedure model under the influence of the concept of cooperative justice, in addition to the accused’s choice to shift the adversarial position, the role of the cooperative choice made by the victim should not be overlooked as well. If the legitimate claims of the victims cannot be respected and remedied, then the public, including the victims, will find it difficult to truly accept the leniency system for pleading guilty and accepting punishment. Therefore, it is necessary to pay attention to the role of the victim’s cooperation in cases of pleading guilty and accepting punishment and its form of participation, which is an inherent requirement to ensure the lasting vitality of the leniency system for pleading guilty and accepting punishment, and is also the basis and guarantee of China’s reform of the litigation mechanism to promote the simplification of criminal cases. Therefore, taking into account the fact that both the victim and the accused need professional legal aid to fully understand the real situation of the leniency system for pleading guilty and accepting punishment, it is necessary to learn from the idea of the state’s program to provide legal aid for the accused in order to ensure their voluntariness to plead guilty and accept punishment, especially the legal aid of lawyers on duty, and provide necessary legal aid services for the victim in cases where the accused pleads guilty and accepts punishment, so as to ensure that the victims understand the legal effect and consequences of the relevant litigation acts they have implemented, and guide the victims to participate in the handling process of cases of pleading guilty and accepting punishment substantially and effectively.

 

 

In the field of criminal justice, the state should give primary consideration to the relief of the legal rights of the victim. This is an important manifestation of “the state’s respect for and protection of human rights.” Only by accurately recognizing the changes in the procedural rights of victims and their legal status in the leniency system for pleading guilty and accepting punishment can we design a targeted normative program to guarantee the effective participation of the victim. Deeply influenced by the concept of cooperative justice, in the context of the reform in which the criminal procedure has been greatly simplified or even omitted, it is obviously inappropriate to highlight only the cooperative relationship between the accused and the state’s public authorities, while ignoring the changes in the relationships between the victim and the accused and the state’s public authorities. In the process of litigation of cases of pleading guilty and accepting punishment, the litigation roles of victims and the accused have all undergone an adaptive change from passive participation to active cooperation. The resulting rationale for the victim’s cooperation has gained room for application in the system of leniency for pleading guilty and accepting punishment. On the basis of the rationale for the victim’s cooperation, the following four aspects should be taken into account in order to improve the normative program for protecting the rights and interests of victims in litigation.

 

 

In the system of leniency for pleading guilty and accepting punishment, the victim has an important influence on the formation of the recognizance and the outcome of the case. In this context, the “two limits” principle should be followed in order to improve the procedural status of victims in cases where the accused pleads guilty and accepts punishment. The so-called “two limits” principle, that is, “limited expression” and “limited rationality”: the former refers to respecting the status of the victim and the accused as subjects of litigation, allowing the victim to express their claims and defend their rights and interests in an appropriate way in the context of the simplicity of the litigation process, rather than only worrying about the victim’s participation affecting the efficiency of the litigation; the latter refers to respecting the cooperation and choice of the victim in cases of pleading guilty and accepting punishment, but it is not appropriate to overstate the autonomy of the victim. Therefore, the state needs to set up a special legal aid and review and confirmation mechanism. Considering the coexistence of the refined and simplified sample of criminal proceedings, thus forming a multi-level litigation system for criminal cases, then the relationship between the victim and the accused needs to be targeted and coordinated, rather than just viewing the two in opposition to each other. It can be seen that there is a need to reflect on the situation where the victim is always in a marginal position, and to emphasize the new interactive relationship between the victim and the accused based on the disposal of rights, and to reverse the situation of criminal prosecution activities centered on the accused. In particular, due to the widespread application of the leniency system for pleading guilty and accepting punishment, the “two limits” principle is used as a guideline to combine the effective participation of victims with the state’s reform program to streamline the litigation process, and attention is paid to the communication and interaction between victims and procuratorial organs at the examination and prosecution stage, so that disputes over convictions and sentences, compensation and settlements in related cases can be resolved at the pre-trial stage, in line with the reform trend of moving the focus of trials forward.²² Subsequently, the court reviews, confirms and makes decisions on the litigation activities and their results carried out jointly by the prosecution, defense and victims. As a result, victims, through interaction and cooperation with the accused and the state’s public authorities, are given the opportunity to make up for their losses and benefits as much as possible at the pre-trial stage, without having to heavily participate at the trial stage or only in a small part of the trial activities, thus consolidating the basis of legitimacy for the state to streamline the litigation process, especially the trial process.

 

 

At this stage, taking into account the rule program of the accused pleading guilty and accepting punishment, reformers usually allow the accused to waive his or her right to plead not guilty and limit his or her procedural rights to participate in court investigations, court arguments and other activities, while granting the accused the right to voluntarily choose to plead guilty or accept punishment, the right to receive legal aid from duty counsel, the right to participate in recognizance activities and sign, the right to withdraw or repent, etc., so as to promote the accused as a cooperator. In light of this, China should also improve the status of the victim as a cooperator in the proceedings. In view of the above, we should improve the cooperation-oriented system of the victim’s procedural rights. In this area, the first thing that should be clarified is that the victim in cases of pleading guilty and accepting punishment who reach an understanding and settlement agreement at the pre-trial stage usually waive the right to file incidental civil lawsuits, the right to appeal, etc. Therefore, the author focuses on five elements in this section, including the right to be informed, the right to be heard, the right to participate in the recognizance, the right to remorse, and the right to obtain legal aid.

 

First, the right to be informed. That is, the right to know the facts of the case. The right to be informed is a basic procedural right that should be enjoyed by the victim. In cases of pleading guilty and accepting punishment, it is necessary to adopt a different system for informing the victims of their rights and obligations and informing them of the case than in cases not involving pleading guilty and accepting punishment. To this end, the case-handling organ should reverse the improper understanding that the participation of the victim will only harm the efficiency of the case handling, and reduce the proportion of mail notification by adopting a richer and more diversified way of notification according to the actual situation of the case. In particular, at the pre-trial stage, the procuratorial organ should ensure that the victim is informed of the relevant content and is able to express him or her position in a timely manner, such as in the formulation of sentencing recommendations and in the implementation of recognizance activities. At the same time, the victim who is informed in a timely manner about the handling of their cases, especially the sentencing recommendations, can also form reasonable expectations of the forthcoming decisions and decide on their participation strategies, so that they can exercise their litigation rights and participate in litigation activities more effectively.

 

Second, the right to be heard. The relevant provisions of the 2018 Criminal Procedure Law require the procuratorial organ to hear the views of the victim in a timely manner during the recognizance period, but the court and public security authorities are not bound by this.²³ This is clearly not conducive to protecting the victim’s right to express his or her views, and it is difficult to ensure the legal validity of the victim’s opinion. This problem is particularly evident in the adjustment of sentencing recommendations. On the basis of Articles 173 and 201 of the 2018 Criminal Procedure Law, it is necessary to further clarify the protection obligations that the judicial organs should undertake. First, for the procuratorial organ, it must listen to the opinions of the victim on the sentencing recommendations at both the pre-trial stage and the trial stage, and if the sentencing recommendations need to be adjusted, the procuratorial organ should communicate with the court and determine the adjustment program, with pre-trial adjustment as the principle and in-court adjustment as the exception. This will make it easier for the procuratorial organ to inform the victim in advance of the adjustment of the sentencing recommendation and to take the victim’s opinion as an important reference. Even if the sentencing recommendation has to be adjusted on the spot, the procuratorial organ should inform the victim of the change in the sentencing recommendation in a timely manner after the trial, and pay attention to the interpretation of the law and reasoning. Secondly, for the court, in cases where it is necessary to adjust sentencing recommendations, the court should create time and space for the procuratorial organ to hear the views of the victim in accordance with the actual situation of the trial, especially if the sentencing recommendations of the procuratorial organ are not adopted, the court should present the reasoning for its judgment.²⁴

 

Third, the right to participate in the recognizance. This right is an important prerequisite for ensuring the substantive participation of the victim in the process of pleading guilty, accepting punishment and recognizing the outcome of the case. First, there is an urgent need to reverse the situation in which the victim is excluded from recognizance activities and to clarify the status of the victim as eligible subjects to participate in recognizance activities. Second, the types of cases in which the victim participates in the recognizance need to be scientifically defined, in other words, it is not appropriate or possible for the victim to participate in the recognizance activities in all cases, but the scope of the corresponding cases needs to determines according to the impact of the victim’s participation on the outcome of the case and the efficiency of the case. Finally, the procuratorial organ should play a leading role in pre-trial recognizance activities. For cases where the participation of victims is necessary, the procuratorial organ may inform the victim to participate and express their opinions on the spot; in addition, the procuratorial organ has the right to deal with cases where the victims improperly disrupt the recognizance activities.²⁵ In this way, a program with Chinese characteristics for the on-site witnessing of recognizance activities by the victim, overcoming the difficulty of the closed nature of participation by only the prosecution and the defense, and appropriately enhancing the participation of the victim while promoting the openness of recognizance activities.

 

Fourth, the right to remorse, that is, the right of the victim to change his or her position and no longer recognize and accept the outcome of the pleading guilty and accepting punishment. Even if the victim reaches a settlement or understanding with the accused at the pre-trial stage and agrees with the handling decision of the case-handling organ, this does not mean that the victim cannot regret their decision afterwards. However, considering the negative impact of the victim’s change of heart on the application of the leniency system for pleading guilty and accepting punishment, the litigation process and its efficiency, the scope of application of the victim’s right to remorse and its legal effect should be limited, that is, the victim should have a limited right to act on remorse. This idea is in fact consistent with the idea of limiting the act of appeal after the accused’s remorse.²⁶ The judicial authorities should first explain the law and review the victim’s remorse to confirm the legality of the remorse, and subsequently, adjust the litigation activities arising from the victim’s remorse, such as the type and proportion of lenient punishment that the accused may receive and the litigation procedures for handling the case.

 

Fifth, the right to obtain legal aid. That is, the right of the victim to receive guidance from a legal professional so as to accurately understand the rules applicable to the leniency system for pleading guilty and accepting punishment and to make a choice in his or her own interest. Currently, China is considering a draft of a Legal Aid Law to improve a modern legal aid system that meets the needs of the country, i.e., the state is obliged to provide legal services such as legal advice, representation, criminal defense, and legal aid by duty lawyers for citizens in economic hardship and parties who meet the legal requirements without compensation. Considering that the 2018 Criminal Procedure Law specifies that duty lawyers can only provide legal aid for the accused, it should be clarified that the state’s obligation to provide government support to the victim in cases of pleading guilty and accepting punishment to obtain legal aid is manifested by the assignment of legal aid lawyers by legal aid agencies to provide the necessary assistance and guidance for the victim in terms of legal advice.²⁷

 

 

The rationale for the victim’s cooperation has its own scope of application, i.e. it is usually only applicable to cases where the criminal procedure is significantly simplified, which generally refers to cases under expedited procedures and some summary cases. This is because for cases applicable to ordinary proceedings, even if the accused pleads guilty and accepts punishment to a charge, there is still greater scope for victims to participate in the trial if they wish to do so. This suggests that attention should be focused on the human rights protection of victims in the area of expedited and summary proceedings, in order to solve the problem of limited participation of victims in court activities after the trial process has been greatly streamlined. Considering that in recent years China has put forward the reform goal of building a “misdemeanor litigation system with Chinese characteristics,” and under the influence of the leniency system for pleading guilty and accepting punishment, the reform idea that has reached more consensus is to divide the procedure according to whether the accused pleads guilty or not. This idea still reflects the trend of reform centered on the person being prosecuted more obviously. In fact, the level of pluralism in the reform of the multi-level litigation system still needs to be appropriately increased, that is, to take care of the real needs of victims to participate in cases of pleading guilty and accepting punishment, and to explore new programs for simplification and articulation of litigation procedures on the basis of respecting the status of victims in litigation. To this end, first of all, the concept to be adjusted is that, as mentioned earlier, it is not appropriate to continue to follow the one-size-fits-all rule that objection by the victim does not affect the application of the leniency system for pleading guilty and accepting punishment; on the contrary, for some specific types of criminal cases, such as personal-injury criminal cases, the impact of an objection by the victim in the application of the system, especially for cases where a decision not to prosecute is made or where the conditions for application of criminal reconciliation procedures are met but no reconciliation is reached, the procuratorial organ should fully respect the objection of the victim. Second, the interface between the leniency procedure for pleading guilty and accepting punishment and the criminal reconciliation procedure should be strengthened. The 2018 Criminal Procedure Law stipulates that for cases in which the victim and the accused have not reached a settlement agreement, the court shall not apply the expedited procedure, but may apply other leniency procedures for pleading guilty and accepting punishment. Considering that the 2019 Guiding Opinions also stipulate that if expedited procedures and summary procedures are it not applied, it does not affect the determination of “accepting punishment,” this actually further detracts from the legal effect of the victim’s reconciliation in the leniency system for pleading guilty and accepting punishment. Therefore, it is necessary to scientifically correct the relationship between criminal reconciliation procedures and leniency procedure for pleading guilty and accepting punishment. Finally, a secondary division is made within the expedited procedure, mainly with a view to the possible implementation of a written trial system in the future, i.e., a distinction is made between expedited-procedure cases subject to written trial procedures and expedited-procedure cases subject to simplified trial procedures in court.²⁸ In this regard, in accordance with the concept of “the process is the punishment,” it is necessary to consider the consent of the victim in some cases as a precondition for the application of written proceedings, if such proceedings are applied and the victim has no direct access to the trial.

 

 

The rule of leniency is the landing point for the leniency system for pleading guilty and accepting punishment and a prerequisite for mobilizing the motivation of the accused to plead guilty and accept punishment.²⁹ On the basis of Article 15 of the 2018 Criminal Procedure Law, the 2019 Guiding Opinions further refines the criteria for judging cases in which the accused pleads guilty and accepts punishment and receives leniency in return. A careful analysis reveals that the relevant criteria mostly reflect the expectation of the reformers to maximize the scope of application of the leniency system for pleading guilty and accepting punishment, but may detract from the legal effect of the victim’s participation in the act. For example, in cases where the accused has not returned the stolen goods and provided compensation for any damages, and has failed to reach a mediation or settlement agreement with the victim, the leniency system for pleading guilty and accepting punishment can still be applied, except that the leniency will be reduced at the time of leniency. However, in the case of cases of pleading guilty and accepting punishment in China, where the range of leniency is already small, this “discretionary reduction” usually has only declaratory significance. For this reason, it is necessary to start from the perspective of cooperation by the victim, re-examine the influence of the victim as a factor in the sentencing leniency, and as an important grip to improve the system of leniency in cases of pleading guilty and accepting punishment. First, to reaffirm the similarities and differences between pleading guilty and accepting punishment circumstances and surrender, confession and other similar circumstances, highlighting the independent evaluation of the pleading guilty and accepting punishment circumstances at the criminal law level, and then determine the proportion of sentencing leniency of the circumstances. Currently, although there is a certain practical consensus basis for the “3:2:1” rule corresponding to the three stages, there are inherent deficiencies in the field of doctrine and practice. Hence, there is an urgent need for the highest judicial organ to issue special documents to regulate the application.³⁰ Second, the connection and difference between a victim’s understanding of reconciliation and the restoration of stolen goods and receiving compensation need to be needs to determine in terms of leniency. According to the existing judicial interpretation, most of the abovementioned circumstances have their own sentencing reduction ratio, but this has nothing to do with whether the accused pleads guilty and accepts punishment or not, plus it cannot be simply equated with the return of stolen goods and the paying of compensation, so it is necessary to properly evaluate separately the victim’s consent to the application of the relevant system and procedures in cases of pleading guilty and accepting punishment. That is the conduct, as a separate circumstance in favor of the accused, is to be evaluated. Again, in determining the proportion of leniency, the positive impact of the victim’s consent on the proportion of sentence reduction in cases of pleading guilty and accepting punishment should be considered. This is an inevitable requirement to obtain the cooperation and support of the victim, and, of course, there is a need to avoid repeated evaluation. Finally, to clarify the specific proportion of “discretionary reduction” and its rules, to avoid the vague and indefinite “discretionary reduction” words to describe the legal effect of the act of the accused to make up for the damaged rights and interests of the victim, and to solve the problem that the victim does not agree or the accused did not return the stolen goods and make reparations and compensate for damages, etc., which do not basically affect the proportion of the sentence.

 

 

The leniency system for pleading guilty and accepting punishment has become an important criminal justice reform initiative to promote the modernization of national governance. The deepening application of the system is affecting the litigation protection system for rights of the victim at both the theoretical and practical levels. In this regard, we should start by improving the level of human rights protection for the victim and re-examine the improvement path of the leniency system for pleading guilty and accepting punishment. After all, the traditional victim rights protection system is based on the concept of adversarial justice, but this obviously cannot fully adapt to the reform needs of the system of leniency for pleading guilty and accepting punishment, which is influenced by the concept of cooperative justice. Only by ensuring that the victim can fully participate in the process of cases in which the accused pleads guilty and accepts punishment, can it truly wind up the case and resolve the conflict.³¹ The reality is that the existing theoretical preparation on the protection of the rights of the victim in cases of pleading guilty and accepting punishment is still inadequate.³² This is a difficult problem of reform that needs to be urgently solved. In this regard, it is necessary to analyze the multiple connotations of the change in the status of victims and their rights in cases of pleading guilty and accepting punishment, to argue the theoretical and reform value of the rationale for the cooperation of the victims, and to use it as a program guideline for a sound leniency system for pleading guilty and accepting punishment. It is worth expecting that, as the rules for effective participation of victims in cases of pleading guilty and accepting punishment become more scientific and standardized, the quality of human rights protection in the field of criminal justice in China can be continuously improved. This is the latest manifestation of the Criminal Procedure Law’s further concretization of the constitutional spirit of “the state’s respect for and protection of human rights”.

 

(Translated by JIANG Yu)

 

* ZHAO Heng ( 赵恒 ), Assistant Researcher and Postdoctoral Researcher of the Law School, Shandong University. This article is a phased result of the general project of “Research on the Human Rights Protection of Victims in Leniency Cases Involving Pleading Guilty and Accepting Punishment” (Project No.: CSHRS2020-16YB) under the Ministry-level research program of the China Society for Human Rights Studies (CSHRS) in 2020.

 

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