Comparative Studying of Plea Bargaining Institution in Common Law and Civil Law
Document Type : Research Paper
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Abstract
A comparative study on plea bargaining the institution of plea bargaining is a legal and compromise- orientated intuition based upon the mutual agreement of defendant and the Judiciary plea bargaining, as a method and strategy of contractualization of criminal law, in the belief that the formality and entity of the criminal justice system must be protected, tries to adjust suppressive and one- sided attitude of this system towards the defendant and, in this direction, considers the defendants will in determination of punishment.
The purposes of this institution include criminal deflation, enhancement of criminal justice systems effectiveness, reduction of economical cost of criminal process- especially when this cost goes beyond the cost of the principal claim itself- acquisition of valuable information from the defendant and those involved in criminal conduct and about the way of its commission, prevention of prolongation of criminal proceeding, giving an opportunity to the defendant for correction and, finally , to remove him/her from some unpleasant effects of certain convictions. Plea bargaining is an agreement between defendant and the Judiciary according to which the accused accepts to cooperate with the Judiciary and, instead, the Judiciary undertakes to extenuate or acquit him/her. In this way, as the result of the mutual agreement of defendant and the Judiciary, the criminal case is settled without any further time or additional formality. This criminal institution was created in common law, but its usefulness and advantages caused its expansion in same civil law countries. Meanwhile, since the institution of plea bargaining has originated in common law system, civil law countries have inevitably, domesticated it in their own legal systems.
The purposes of this institution include criminal deflation, enhancement of criminal justice systems effectiveness, reduction of economical cost of criminal process- especially when this cost goes beyond the cost of the principal claim itself- acquisition of valuable information from the defendant and those involved in criminal conduct and about the way of its commission, prevention of prolongation of criminal proceeding, giving an opportunity to the defendant for correction and, finally , to remove him/her from some unpleasant effects of certain convictions. Plea bargaining is an agreement between defendant and the Judiciary according to which the accused accepts to cooperate with the Judiciary and, instead, the Judiciary undertakes to extenuate or acquit him/her. In this way, as the result of the mutual agreement of defendant and the Judiciary, the criminal case is settled without any further time or additional formality. This criminal institution was created in common law, but its usefulness and advantages caused its expansion in same civil law countries. Meanwhile, since the institution of plea bargaining has originated in common law system, civil law countries have inevitably, domesticated it in their own legal systems.
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