德国刑事诉讼程序中的协商

By introducing a very controversial issue in science of criminal procedures in a systematic and complete way, this article illustrates the dimension of practical style and the spirit of brazing new trails in law community in Germany. Being a form of winding up a case in criminal procedures, consultation is described as achieving an agreement and understanding, or even a deal. It may occur in pre-judicial proceedings, proceedings of criminal orders and trial proceedings. At present, consultation has been widely used in cases dealing with economic crime, narcotics, environmental crime and tax crime, including large scale and grave crimes, or even in proceedings involving violence crime and intentional homicide. In academic community in Germany, what is unanimously agreed upon is that consultation violates the constitution and basic principle of criminal procedure law. But lawyers, judges and prosecutors almost all support activities of consultation. They hope to incorporate consultation into existing system of proceedings through an appropriate and harmonious way. The Constitutional Court of Germany holds that consultation will not violate the constitution if defendants' rights prescribed by law are not infringed upon. However, it is not allowed to "conduct consultation in the form of judgement". The Supreme Court at German federal level used to maintain that there did not exist a procedure where result of a trial may reached through consultation. Now the court holds that "it is not impermissible generally" to reach an understanding in criminal litigation proceedings. Special focus has been given to consultation involving withdrawal of a suit on the condition of payment, consultation in proceedings of criminal orders and consultation conducted with a view to plea of guilty. The author thinks that a defendant may participate constructively in determination of criminal responsibility and punishment through consultation. This change of role has already led to new changes in objective and use of criminal litigation procedures. A legal framework for consultation, therefore, should be instituted in German criminal proceedings.