The history and current status of sentencing recommendations by procuratorial organs

The procuratorial sentencing recommendation is very important, and in criminal proceedings, the procuratorate's sentencing recommendation can be used as a reference for the court's sentencing, not that the court must make a judgment based on the procuratorate's sentencing.

Legal analysisIs the procuratorial sentencing recommendation important in China: 1. In criminal proceedings, the procuratorate's sentencing recommendation can be used as a reference for the court's sentencing, not that the court must make a judgment based on the procuratorate's sentencing. The courts exercise their adjudication power independently and are not subject to interference from affected organizations or individuals.

2. In judicial practice, there is little difference between the court's judgment and the procuratorate's sentencing. This is because the law applied by the two judicial authorities is the same, and the consideration of the case is relatively accurate. 3. If there is a big discrepancy between the court's judgment and the procuratorate's recommendation, the procuratorate may exercise the power of judicial supervision to raise a protest, but the final judgment is still decided by the court.

In criminal proceedings, the procuratorate's sentencing recommendation can be used as a reference for the court's sentencing, which does not mean that the court must make a judgment based on the procuratorate's sentencing. The courts exercise their adjudication power independently and are not subject to interference from affected organizations or individuals. In judicial practice, there is little difference between the court's judgment and the procuratorate's sentencing. This is because the law applied by the two judicial authorities is the same, and the consideration of the case is relatively accurate.

Legal basis"Rules of Criminal Procedure of the People's Procuratorate" Article 364: In cases where the People's Procuratorate initiates a public prosecution, it may submit a sentencing recommendation to the People's Court. Except where there are circumstances commuting or waiving punishment, sentencing recommendations shall be submitted within the legally-prescribed sentencing range. Where it is recommended that a sentence of fixed-term imprisonment, controlled release, or short-term detention be given, it may have a certain range, and a specific recommendation may also be submitted.

Where a sentencing recommendation is submitted, a sentencing recommendation may be drafted and transferred to the people's court together with the indictment. The main content of the sentencing recommendation shall include the legally-prescribed sentence for the crime committed by the defendant, the sentencing circumstances, the type of punishment recommended that the people's court impose on the defendant, the range of punishment, the applicable methods for enforcing the punishment, and the basis and reasons for submitting the sentencing recommendation. Sentencing recommendations in plea cases are to be handled in accordance with the provisions of section 2 of this chapter.

The power to make sentencing recommendations is the power enjoyed by the public prosecutor of the Shirt Hall to make sentencing recommendations to the judge during the trial in accordance with the law. The right to recommend sentencing is the embodiment of the will of the state, and it is an intrinsic part of the right to prosecute, and it is a judicial right to request punishment based on the right to request punishment. The procuratorate's indictment usually has a sentencing recommendation, and the lawyer can see it.

1. The sentencing document does not write whether a suspended sentence is a suspended sentence.

Suspended sentences that are not written in the sentencing book are not considered suspended sentences. Suspended sentences, also known as suspended sentencing, refer to the first announcement of conviction of perpetrators who have violated the criminal law and have been confirmed through legal procedures to have constituted a crime and should be punished by criminal punishment, and temporarily not enforce the sentence imposed. A system in which a specific investigation body conducts an examination of the convict within a certain period of probation, and decides whether to apply a specific punishment in accordance with law on the basis of the offender's performance during the probationary period.

The procuratorate's sentencing recommendation is only a recommendation to the court, and the final sentence is determined by the court based on the actual circumstances of the case.

2. If the procuratorate does not recommend a suspended sentence, it cannot be suspended.

If the procuratorate's sentencing document does not recommend a suspended sentence, and the court finds that a suspended sentence will be given if it finds that it is appropriate for a suspended sentence, if the procuratorate finds that the discretionary sentence and punishment method are inappropriate, it may exercise the power of trial supervision, but it is the next legal procedure. The procuratorate has the power of procuratorial suggestions and also has the power of judicial supervision, but the power of judicial adjudication lies with the courts, and procuratorial suggestions are an important reference basis for the trial of the judicial system, but not the basis for decision, the basis for decision is in the law, and the power to make decisions lies in the court or the collegial panel for adjudication.

3. Will a suspended sentence be given for sentencing 8 to 10 months?

If the procuratorate sentences a sentence of 8-11 months, the court will normally sentence the sentence within 7-10 months. The sentencing recommendation put forward by the procuratorate during the court trial has comprehensively considered the circumstances of the entire case, including whether there is a letter of understanding, the defendant's admission of guilt and remorse, and the consequences caused.

Under normal circumstances, the court will impose a sentence within the recommended range according to the sentencing recommendation of the procuratorate. However, this does not mean that the court will necessarily sentence in accordance with the procuratorate's sentencing recommendation, and legally speaking, the court has the right to make a judgment in accordance with the law based on the circumstances of the trial, and should not be affected by the procuratorate's sentencing recommendation.

Rules of Criminal Procedure of the People's Procuratorate

Article 399:After receiving the first-instance judgment or ruling of the people's court, the People's Procuratorate shall promptly review it, and the person undertaking the case shall fill out the criminal judgment or ruling review form, submit a disposition opinion, and report it to the person in charge of the review and prosecution department for review. In cases where it is necessary to raise a prosecutorial counter-appeal, the department reviewing for prosecution shall report to the chief procurator for a decision; In cases where the facts of the case are difficult or major and complicated, the chief procurator is to submit it to the procuratorial committee for discussion and decision.

Article 400: People's procuratorates shall raise a prosecutorial counter-appeal against the first-instance judgment of the people's court at the same level within 10 days of receiving the judgment; A procuratorial counter-appeal against the ruling shall be submitted within 5 days of receiving the written ruling.

Where criminal suspects admit guilt and accept punishment, the people's procuratorate shall submit a sentencing recommendation on the primary punishment, supplementary punishment, whether a suspended sentence is applied, and so forth. Sentencing recommendations in plea cases shall generally be based on a determinate sentencing recommendation, and sentencing recommendations may also be submitted for new types of uncommon crimes, serious crime cases with complex sentencing circumstances, and so forth, but the range should not be too wide.

When submitting a sentencing recommendation, the sentencing recommendation shall combine the facts and circumstances of the case to explain the reasons and basis for the calculation of the recommended sentencing, whether a suspended sentence is to be applied, and so forth. Where the sentencing recommendation is indicated in the indictment, a separate written interpretation of the sentencing recommendation may be issued to explain the reasons and basis described above.

Before the people's procuratorate submits a sentencing recommendation, it shall fully hear the opinions of the criminal suspect, defender, or duty lawyer of the person making trouble, and try to reach a consensus through consultation.

In the case of the defendant suspected of committing a crime by the people's procuratorate, upon examination by this court, it is found that the defendant's conduct has violated the provisions of Article 1, Paragraph 1 of the "Criminal Law of the People's Republic of China," the facts of the crime are clear, the evidence is credible and sufficient, and he should be investigated for criminal responsibility for the crimeStatutory aggravating circumstances:

2.Statutory mitigating, mitigating, or exempting circumstances 3Discretionary aggravating circumstance 4

Discretionary mitigating punishment Circumstance 5Therefore, in accordance with the provisions of the legal basis), it is recommended that the defendant be sentenced to the type and range of the main punishment or a separate supplementary punishment or exemption from criminal punishment), and the method of enforcement), and the supplementary punishment shall be imposed). The People's Law Zhao Bureau, the year, the month and the day (the court seal.

Article 72 of the Criminal Law: Suspended sentences may be announced for criminals sentenced to short-term detention or up to three years imprisonment if the following conditions are met at the same time, and suspended sentences shall be announced for persons under the age of 18, pregnant women, and persons who have reached the age of 75: (1) The circumstances of the crime are relatively minor; (2) Showing remorse; (3) There is no risk of recidivism; (4) The suspended sentence is declared to have no major adverse impact on the community in which they reside.

The circumstances in which the procuratorate's sentencing recommendation is rejected are as follows: (1) The defendant's conduct does not constitute a crime or should not be pursued for criminal responsibility; (2) The defendant admits guilt and accepts punishment against his will; (3) The defendant denies the facts of the crime as charged; (4) The charges charged in the indictment are inconsistent with the charges found at trial; (5) Other circumstances that might impact the fairness of the trial. Article 201 of the Criminal Procedure Law of the People's Republic of China.

Article 282 of the Supreme People's Court's Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China: The People's Procuratorate may submit a sentencing recommendation and explain the reasons; Where it is recommended that a sentence of controlled release or a suspended sentence be announced, an investigation and assessment report shall generally be attached, or a letter of entrustment for investigation shall be attached. The parties, their defenders, and litigants may submit opinions on sentencing and explain the reasons.

In accordance with the "Guiding Opinions of the People's Procuratorate on Carrying Out Sentencing Recommendation Work".

Article 2: People's procuratorates submitting sentencing recommendations shall comply with the following principles:

1) Recommendations in accordance with law. A sentencing recommendation shall be submitted in accordance with the provisions of the Criminal Law, the Criminal Procedure Law, and relevant judicial interpretations on the basis of the facts of the crime, the nature of the crime, the circumstances, and the degree of harm to society.

2) Objectivity and fairness. Closed searches shall proceed from the actual circumstances of the case, objectively and comprehensively review the evidence, and submit a fair sentencing recommendation based strictly on the facts.

3) Combining leniency and severity. The criminal policy of blending leniency and severity shall be implemented, and sentencing recommendations shall be submitted on the basis of comprehensive consideration of various circumstances such as the severity of the case, mitigating it, commutation, or waiving punishment.

4) Focus on results. When submitting a sentencing recommendation, it is necessary to exercise the legal supervision authority of the procuratorial organs in accordance with law, but also respect the independent exercise of the adjudication power of the people's courts, and strive for the best results of the sentencing recommendation.

Article 3: People's procuratorates may submit sentencing recommendations in cases where a public prosecution is brought to the people's courts.

Article 4: Cases where a sentencing recommendation is submitted shall meet the following requirements:

1) The facts of the crime are clear and the evidence is credible and sufficient;

2) The various legally-prescribed sentencing circumstances such as aggravating, mitigating, and commuting sentencing on which the sentencing recommendation is based have been clarified;

3) The important discretionary sentencing circumstances such as heavier and lighter sentencing on which the sentencing recommendation is based have been clarified.

Article 5: Except where there are mitigating circumstances, sentencing recommendations shall be submitted within the legally-prescribed sentencing range, and must not span two or more principal punishments.

1) Where it is recommended that a death sentence or indefinite imprisonment be given, caution shall be exercised.

2) Where a sentence of fixed-term imprisonment is recommended, a relatively clear sentencing range shall generally be submitted, and where the legally-prescribed range is less than 3 years (including 3 years), the recommended range is generally not more than 1 year; Where the range of the legally-prescribed sentence is greater than 3 years but less than 5 years (including 5 years), the recommended range is generally not to exceed 2 years; Where the legally-prescribed range of sentences is greater than 5 years, the recommended range is generally not to exceed 3 years. Based on the specific circumstances of the case, if it is truly necessary, a recommendation may also be made to determine the sentence for a concealed sentence.

3) Where a sentence of controlled release is recommended, the range is generally not to exceed 3 months.

4) Where it is recommended that a sentence of short-term detention be given, the range is generally not to exceed 1 month.

5) Where it is recommended that a suspended sentence be applied, it shall be clearly stated.

6) Where it is recommended that an additional sentence be given, only a recommendation for the application of the type of punishment may be submitted.

In special cases where it is not appropriate to submit a specific sentencing recommendation, a general recommendation such as a heavier, lighter, or commuted punishment may be submitted in accordance with law.