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Criminal Procedural Agreements in China and England and Wales

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Criminal Procedural Agreements in China and England and Wales Criminal Procedural Agreements in China and England and Wales and England in China Agreements Procedural Criminal Criminal Procedural Agreements in China and England and Wales Wei Pei Wei Pei Wei +#'#(&+).+& !+'(-, #( "#(((!&((&, -+ *+),+"-&#$%)/+(%)',-( #( "#(((!&((&, +) ,"+# --+/+%+#$!#(!/(!+/()-)+( +,'.,(#/+,#-#-)--+')*!1!/( +-)+'!(# #., +) + )&, (/)&!(,,&.#-/("- )&&!/))++)')-#, )*(+/+#!#(!1&*&-,/#(()* /+#$! $.(#)'..+ ))+ ## !)+(-"(0# "#( +)')-)+( +) '+ &#"+)- +) +# /+#!&( +) '+)&+ +) '++ +#$(, +) )!,)( " To my parents, Pei Chengfa and Li Jialin Table of Contents Acknowledgments ................................................................................................................................... 1 List of Abbreviations .............................................................................................................................. 3 List of Main Cases .................................................................................................................................. 5 List of Laws and Official Documents .................................................................................................... 9 CHAPTER I INTRODUCTION ........................................................................................................ 11 1. Development of Agreements in Criminal Procedure ............................................................... 11 2. Research Subject ......................................................................................................................... 14 3. Research Questions ..................................................................................................................... 16 4. Research Methods ....................................................................................................................... 17 5. Structure of the Thesis ................................................................................................................ 19 CHAPTER II CONCEPTUALIZING CPAS: MODEL, ELEMENTS, AND NATURE ............. 21 1. Introduction ................................................................................................................................. 21 2. The Pure Model and Its Variants .............................................................................................. 21 2.1 Basic Elements of An Agreement ......................................................................................... 22 2.2 Context in Which CPAs Take Place ..................................................................................... 22 2.3 Additional Elements by Referring to ‘Contract’ ................................................................... 23 2.4 Pure Model and Its Variants .................................................................................................. 24 3. Categorization: From the Offender’s Perspective ................................................................... 25 3.1 Plea Agreement ..................................................................................................................... 26 3.2 Assistance Agreement ........................................................................................................... 29 3.3 Restoration Agreement .......................................................................................................... 31 4. Fundamental Parties and Other Stakeholders ......................................................................... 32 4.1 Fundamental Parties: Offender and Criminal Justice Authorities ......................................... 32 4.1.1 Offenders ........................................................................................................................... 32 4.1.2 Police ................................................................................................................................. 33 4.1.3 Public Prosecutors ............................................................................................................. 33 4.1.4 Judges ................................................................................................................................ 34 4.2 Other Stakeholders ................................................................................................................ 36 4.2.1 Victims .............................................................................................................................. 36 4.2.2 The Accused Person Targeted in Assistance Agreement .................................................. 38 5. Goals for CPAs ............................................................................................................................ 38 5.1 Goal for Plea Agreement ....................................................................................................... 38 5.2 Goal for Assistance Agreement ............................................................................................. 39 5.3 Goal for Restoration Agreement ........................................................................................... 39 5.4 Common Ideology behind Goals ........................................................................................... 40 6. Nature of CPAs: Possibility, Necessity and Feasibility ............................................................ 40 6.1 Possibility: Bargaining Power of Parties ............................................................................... 41 6.1.1 State’s Bargaining Power .................................................................................................. 41 6.1.2 Offender’s Bargaining Power ............................................................................................ 43 6.2 Necessity: The Demands of Parties ....................................................................................... 44 6.2.1 Offender’s Demands ......................................................................................................... 44 6.2.2 State’s Demands ................................................................................................................ 45 6.3 Feasibility of Coordinating CPAs with Ordinary Procedures ............................................... 47 6.3.1 Characteristics of CPAs in the Criminal Justice Scenario ................................................ 47 6.3.2 Feasibility of Coordination ................................................................................................ 48 7. Conclusions .................................................................................................................................. 49 CHAPTER III CRIMINAL PROCEDURAL AGREEMENTS IN CHINA ................................. 51 1. Introduction ................................................................................................................................. 51 2. Plea Agreement ........................................................................................................................... 51 2.1 Historical Review on Plea Agreement in China: from Subsidiary to Independent ............... 53 2.2.1 Before 21st Century: In Practice but Out-of-Law ............................................................. 53 2.2.2 Beginning of the 21st Century: The Boomlet of Plea Bargaining ..................................... 54 2.2.3 After 2003: Enhanced Facilitation for Plea Agreement .................................................... 56 2.2 Current Legal Regime of Plea Agreement ............................................................................ 57 2.2.1 Categorization ................................................................................................................... 57 2.2.2 Proceedings ....................................................................................................................... 58 2.2.3 Legal Concessions ............................................................................................................. 59 2.3 Motivations for Plea Agreement ........................................................................................... 60 2.3.1 Enhancing Efficiency ........................................................................................................ 60 2.3.2 Indication of Improving Respect for Individual Rights .................................................... 62 2.3.3 Uphold the Principle of Legality ....................................................................................... 63 2.4 Potential Risks ....................................................................................................................... 64 2.4.1 Tension with Seeking Truth .............................................................................................. 64 2.4.2 Tension with Inquisitorial Tradition ................................................................................. 65 2.4.3 Tension with Supporting Mechanisms .............................................................................. 66 2.5 Chinese Version of Plea Agreement: Nature and Future ...................................................... 68 2.6 Summary ............................................................................................................................... 70 3. Assistance Agreement ................................................................................................................. 70 3.1 Historical Review on Assistance Agreement:
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