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

Abstract

A plea bargaining system was introduced into Chinese Criminal Procedure Law in 2018 and became a basic principle of Chinese Criminal Procedure. This plea bargaining system embodies characteristics of both adversary and inquisitorial models. Chinese prosecutors are granted with a leading role in this plea bargaining system, as in the U.S., and can decide which cases are suitable for plea bargaining, which type of process can be applied, and give recommendations as to the sentencing, 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; the function of trials is derogated and undermined; and the decision-making process on core issues is moved forwards to the pre-trial period. Moreover, the procedural rights of defendants are more at risk when prosecutors dominate plea bargaining without any supervision from outside. With a brief introduction of an inquisitorial model based on the German plea bargaining system, 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.