«Contractual» Procedures in Pre-Trial Criminal Proceedings: Asian Experience

Abstract

The criminal procedural legislation regarding the simplification of criminal proceedings and the use of «contractual» procedures in the stage of pre-trial investigation in a number of Asian states (Japan, China, Taiwan, Singapore, Indonesia, and Malaysia) has been analysed. It is emphasized that the rather conservative criminal procedural legislation of many Asian states during the last decade underwent reforms aimed at optimizing, simplifying, and speeding up criminal proceedings, including through the use of «contractual» procedures. It has been established that the Asian experience of applying simplified procedures during pre-trial investigation, in particular, «contractual» procedures in criminal proceedings, attests to the granting of very broad discretionary powers to prosecutors. It is concluded that mostly «contractual» proceedings in Asian states in one form or another involve the procedure of concluding a plea agreement, which must ultimately be reviewed by the court, which, depending on the state, has more or less discretion when approving it and imposing punishment. Certain Asian states have adopted the classic approach to concluding plea agreements that originated in the United States (plea bargaining), while others have introduced more original models. In particular, the Japanese model of «contractual» proceedings provides for the cooperation of the accused not with respect to the criminal offense he or she committed, but only with respect to the commission of criminal offenses by other persons. Instead, in Singapore, several models of negotiations between parties in criminal proceedings are used — without the participation of a judge, with the judge’s mediation, as well as the conclusion of a «Deferred Prosecution Agreement» available to legal entities. The opinion was expressed that Singapore’s experience in implementing a system of negotiations between the prosecution and defence parties through the mediation of a judge («Criminal Case Resolution») is interesting from the point of view of the possibility of implementation in Ukraine, which provides for the elimination of contradictions with the aim of a quick and conflict-free resolution of the case and, to some extent, has signs of a mediation.