Indigenized Reflection on the Expected Interest Protection of the Accused in Prosecution and Defense Negotiation——A Comparative Study between China and the United States
In the context of plea bargaining in the United States,the federal system provides mechanisms for the protection of the expected interests of the accused,including provisions such as withdrawing guilty pleas and excluding adverse evidence.Additionally,some states have established judicial protection systems,such as the"judge-provided information model"and the"judicial conciliation model",to ensure judicial participation in negotiations.In terms of institutional design,American judges in most cases only serve as a superficial confirmation of plea agreements and sentencing recommendations.However,in the process of prosecution and defense negotiation in China,the final adjudication right of the trial party has not been transferred to the prosecution due to the introduction of consultative judicial concept.In practice,the judge's adjustment of the prosecution and defense has affected the expectation of sentencing.Based on the legal culture from the perspective of comparative law,this phenomenon reveals the tension between the subsystem of consultative justice with compromise as the core and the criminal litigation parent system with state standard and reality.In the institutional context of China,the prosecution and defense consultation should not be simply positioned as a means of dispute settlement,but should be used as an auxiliary way to explore the truth as soon as possible.Accordingly,China could provide adequate space for prosecutorial communication at a macro level and mitigate potential risks associated with judicial participation in negotiations by allowing judges to intervene upon request,recording judicial participation and appointing sentencing advisory judges.
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