| As the main mechanism for maintaining and achieving leniency expectations, the sentencing recommendation of the procuratorial organ is the key to the construction of the system of leniency for pleading guilty and accepting punishment. Through the hermeneutic analysis, the expression “shall…generally” in Article 201 (1) of the Criminal Procedure Law can only be interpreted as “shall”. However, the association of the provision “the sentencing recommendation is evidently inappropriate” in Article 201 (2) with “other circumstances that may affect a fair trial” in Article 201 (1) can still maintain the judicial organ’s decisive position in sentencing. In the formation of sentencing recommendations, attention needs to be paid to the defense opinion, and the effectiveness of defense is closely related to the fairness of sentencing recommendations. The proposition that sentencing recommendations should “take determined punishment as the rule and range of punishment as an exception” cannot be fully justified. Also, in the absence of detailed sentencing guidelines, it is advisable that procuratorial organs make sentencing recommendations on determined punishment only in simple and minor cases. There are four situations in which the sentencing recommendations should be adjusted. Under these situations, whether “the sentencing recommendation is evidently inappropriate” depends on the court’s understanding, and the court has no legal obligation to notify the procuratorial organ to adjust the sentencing recommendation in advance. |
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