Reconsideration of the Role of Prosecutors in the Chinese Plea Bargaining System: A Comparative Perspective

• In Event: Empirical Research and Theoretical Debates on Plea Bargaining System in Chinese Criminal Justice

Abstract

According to the Chinese Criminal Procedure Law, the Chinese plea-bargaining system follows neither the German nor the U.S. models of plea bargaining, instead, it embodies characteristics of both models. On the one hand, in a similar way to the German model, the burden of proof on prosecutors remains the same in plea bargaining cases as in normal ones, and the judges have to follow the same standards on the discovery of truth in plea bargaining cases, as in cases with normal processes. On the other hand, the organization of plea bargaining follows the U.S. model, where prosecutors take leading roles during the negotiations, namely, they have power to initiate the plea bargaining, and give sentencing recommendations which judges shall in principle follow. To transplant such an arrangement from the U.S. model into an inquisitorial system, however, causes various problems. Fairness and justice cannot be entirely guaranteed under the wide-ranging practice of plea bargaining. For example, without much support from defense lawyers during plea bargaining, suspects/defendants are in a more vulnerable position and their procedural rights cannot be well guaranteed when prosecutors dominate plea bargaining without any supervision from outside. Moreover, the function of trials is derogated and undermined; and the decision-making process on core issues is moved forwards to the pre-trial period. It is doubtful, therefore, whether it is advisable to encourage prosecutors to seek plea bargaining whenever possible, as the on-going reform of the Chinese legal system currently does.
With a brief introduction of an inquisitorial model based on the German plea-bargaining system where German judges play a central role and prosecutors are “safeguards”, the role of Chinese prosecutors in plea bargaining is urged to be reconsidered and their authority should be restricted in order to ensure that judges are guaranteed the judicial power to make final decisions.

Author

• Shi Jiahui, Sichuan University School of Law