In his article, “Systemic Deficiencies in the Guarantee of Voluntariness in Plea Bargaining and Their Remedies,” Professor Sun Changyong points out that, according to Article 39 of the “Guiding Opinions on Pleading Guilty and Accepting Punishment,” the “voluntariness” of pleading guilty and accepting punishment in China should meet three conditions: 1. Awareness—meaning that the defendant must clearly understand the facts and charges related to the crime he is suspected of or accused of, as well as the applicable legal provisions; the legal provisions concerning leniency for confession and acceptance of punishment; and the procedural rights he is entitled to under the law, especially a clear understanding of the nature of the charged crime and the legal consequences of pleading guilty; 2. Prudence—meaning that, based on the defendant’s capacity to participate in the proceedings, he must be able to comprehend the information provided to him and the procedural situation he finds himself in, and be capable of rationally weighing and making a judgment that best serves his own interests; 3. Autonomous Choice (in the narrow sense of voluntariness)—meaning that, on the basis of being aware and prudent, the defendant must independently decide, according to his own genuine will, whether to accept the charges and sentencing recommendations made by the procuratorial authorities; and when choosing between pleading guilty and accepting punishment or not pleading guilty and not accepting punishment, the defendant must not be subjected to any undue external pressure such as violence, threats, or illegal inducements.

Among these three dimensions, “awareness” and “wisdom” are essentially issues of professional expertise. On the one hand, China’s Criminal Procedure Law does not grant the accused the right to review case files; instead, they must rely on their defense attorneys to do so. On the other hand, even after gaining access to the evidence materials, the accused often find it difficult to discern the specific evidentiary standards, legal applicability, and sentencing factors—issues that are highly specialized. In practice, prosecutors and judges primarily inform the accused of their procedural rights, while the accused’s awareness and wisdom largely depend on the assistance provided by their lawyers.

In light of this, in order to address the issues of information asymmetry, inadequacy, and lack of professionalism in the handling of cases involving accused persons, and to ensure that accused persons have access to legal assistance, China’s Criminal Procedure Law has established a system of on-duty lawyers and granted these lawyers rights such as reviewing case files and expressing opinions. However, in actual practice, on-duty lawyers have found it difficult to play a substantive role in providing effective assistance. In most cases, accused persons can only meet with on-duty lawyers when they sign the plea agreement admitting guilt and accepting punishment; at that point, the on-duty lawyers neither review the case files nor offer meaningful opinions, thus becoming mere witnessing lawyers in a “assembly-line” process. This “formalistic assistance” directly leads to the failure to meet the requirements of “knowledgeability” and “wisdom.”

For example, in a case of intentional injury classified as Grade I minor injury that the author handled, the author accepted the mandate after the client had already signed a written statement pledging guilt and accepting punishment. Although the prosecutor had recommended a suspended sentence, the client still hoped to avoid prosecution altogether. After reviewing the case files, the author discovered that the client had remained at the scene, waiting for the police to arrive, fully aware that someone had already called the police. In his statement, the client truthfully recounted the entire sequence of events, meeting all the criteria for self-surrender. Yet this crucial sentencing factor was completely overlooked. During discussions with the prosecutor, the prosecutor acknowledged that the client’s conduct did indeed constitute self-surrender but insisted on proceeding with the prosecution nonetheless. Therefore, after further discussing the details of the incident with the client, the author concluded that the client’s actions clearly qualified as legitimate self-defense. The author then submitted a new request to the prosecutor, pointing out that the possibility of legitimate self-defense could not be ruled out in this case, and requested the prosecutor to summon witness testimony and thoroughly verify all the details of the case. Ultimately, after further confirming the details of the incident with the client, the prosecutor decided to drop the charges against the client.

In this case, the on-duty lawyer’s signature merely satisfied the procedural requirements but did not provide any substantive legal assistance. The client was neither aware of the sentencing factor of voluntary surrender nor familiar with the legal application of legitimate defense. Thus, the client’s act of signing the written statement was, in essence, a passive choice made under conditions of incomplete information and insufficient professional understanding—entirely lacking the core requirements of “knowledge” and “reasonableness.”

Therefore, the author believes that, in order to ensure the voluntariness of the accused, we should further refine the system of lawyer assistance and enhance its effectiveness. For instance, we should clearly define the role of on-duty lawyers, specifying that they should act as defense attorneys rather than mere witnesses. At the same time, we should strengthen their rights and obligations regarding access to case files, conducting interviews with clients, and providing legal opinions, thereby ensuring that on-duty lawyers can offer effective legal assistance based on a comprehensive understanding of the case facts and mastery of the relevant evidence. On this basis, we should establish an admission mechanism for on-duty lawyers, as well as mechanisms for their assessment, evaluation, and exit from the system, using whether or not they provide effective assistance as a key criterion for evaluation.

The core value of the plea-bargaining system lies in striking a balance between judicial efficiency and judicial fairness. Achieving this balance hinges on the voluntary choice made by the accused, who must be fully informed and receive professional assistance. As a crucial component for safeguarding voluntariness, the on-duty lawyer system must not degenerate into a mere “procedural tool”; rather, it should serve as an essential vehicle for substantive defense. Only by ensuring that every accused person who chooses to plead guilty and accept punishment receives effective legal representation can we guarantee that judicial fairness is both efficiently implemented and stands the test of law and time.

Beijing Xinglai Law Firm

Lawyer

A lawyer at Beijing Xinglai Law Firm, holding a Bachelor’s degree in Law from East China University of Political Science and Law and a Master’s degree in Law from Southwest University of Political Science and Law. Ranked among the Top 30 Chinese Legal Stars by LEGALBAND for 2024. Has conducted in-depth research and gained substantial practical experience in areas such as corporate criminal compliance management, crime prevention, and the identification, prevention, and response to corporate criminal legal risks. Has participated in numerous criminal defense cases involving enterprises and entrepreneurs, covering criminal fields including commercial bribery, economic crimes, financial and securities offenses, intellectual property crimes, tax crimes, and environmental crimes.

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