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认罪认罚从宽制度改革研究

On the Systems of Lenient Treatment for Admitting Guilt and Accepting Punishment

刘灿华[著]

刑事诉讼 量刑 研究 中国

2021-01-01

978-7-5203-8551-0

268

22

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内容简介

党的十八届四中全会通过的《中共中央关于全面推进依法治国若干重大问题的决定》提出要“完善刑事诉讼中认罪认罚从宽制度”,2018年新修改的《刑事诉讼法》正式确立了认罪认罚从宽制度的法律地位。本书以改革的思维对认罪认罚从宽制度进行系统性研究。一方面,对刑事速裁程序试点改革与认罪认罚从宽制度试点改革情况进行理论总结,从规范定位、法治化进程、规范内容等方面对改革进行规范解读,总结试点改革的制度创新、理论创新、实践创新以及存在的问题与不足。另一方面,从“理论建构”的维度对认罪认罚从宽制度改革进行反思,为未来改革建言献策。“认罚”是具有中国特色的认罪协商机制,我国在构建认罪协商机制时,要从义务本位主义走向权利本位主义,从有效辩护等方面着手构建科学合理的控辩协商规则。从宽处理既包括刑法意义上的从宽处罚,也包括刑事诉讼法意义上的从宽处理,甚至还包括刑事执行法意义上的从宽待遇。改革要坚持正确的效率观,实现更高层次的公正与效率的统一。除“审判从简模式”外,诉讼“从快”的实现方式还包括权力扩张模式、结构变革模式、权利保障模式和科技促进模式,不能将效率提高直接等同于审判程序从简。

The Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Promoting the Rule of Law Adopted by the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China calls for "improving the system of leniency in admitting guilt and accepting punishment in criminal proceedings." The leniency system for guilty pleas and punishment is a collective system, including a number of criminal law "subsystems", which are specifically composed of numerous criminal law norms, criminal procedure law norms and criminal enforcement law norms, and even contain elements of criminal policy. Therefore, improving the system of leniency in admitting guilt and accepting punishment is a systematic project that affects the whole body. This book attempts to study the leniency system of guilty pleas and punishment with a reform thinking, and the "reform thinking" of this book is mainly reflected in the following aspects. First, interpret the reform from a normative perspective. The reform of the lenient system of confessing guilt and accepting punishment has better handled the dialectical relationship between reform and the rule of law - promoting reform under the rule of law, improving the rule of law in the process of reform, emphasizing the need to use rule of law thinking and methods to deepen reform, and realize the rule of law reform of the system of leniency in admitting guilt and accepting punishment. On the basis of inheriting the original policies, systems, judicial practices and reforms, the current round of reform of the leniency system for guilty pleas and punishment has achieved development and innovation in many aspects, especially the development of the criminal policy of combining leniency and strictness, the expansion of sentencing rules and sentencing theories, the systematization of procedural diversion mechanisms, and the formation of a comprehensive cooperative criminal justice model. From the perspective of the reform process, the current round of leniency system for guilty pleas and punishment has gone through stages such as political decision-making, legislative authorization, local pilot practice, legal revision and comprehensive reform, forming a relatively unique reform model. During the pilot reform of the leniency system for guilty pleas and punishments, both the central and local governments formulated a large number of rules, forming systems such as prosecution and defense consultation, special non-prosecution, duty lawyers, and special sentencing rules, and most of these institutional achievements were absorbed by the revised Criminal Procedure Law in 2018. Although the revised Criminal Procedure Law in 2018 formally stipulates the plea system, this only means that the reform has entered the stage of full implementation, which does not mean that the reform has completely ended, and it is necessary to continue to improve the leniency system for plea and punishment in the future in practical exploration. Second, summarize the reforms, especially the pilot reforms, from a practical perspective. The reform of the lenient system of confessing guilt and accepting punishment has better adhered to the reform methodology of "combining top-level design and grassroots exploration", and encouraged pilot localities to carry out institutional innovation and practical exploration. In the spirit of "practice is the only criterion for testing truth", this book examines and summarizes the pilot practice of the first round of criminal expedited judgment procedures and the pilot practice of reforming the lenient system of guilty plea and punishment. The reform has played an important role in improving case-handling efficiency, optimizing the allocation of judicial resources, protecting the lawful rights and interests of those being prosecuted, and promoting full coverage of defense by lawyers in criminal cases. However, there are also many micro, meso and macro problems in reform. In particular, the punishment recognition mechanism, the leniency mechanism with an uncertain future, and the fast-track mechanism with a crisis-ridden situation still pose certain risks to reform. Third, it constructs the theory of reform from the perspective of jurisprudence and provides suggestions for future reform. The reform of the leniency system for guilty pleas and punishment means the construction of rules, and the construction of rules must adhere to the principle of "scientific legislation". To this end, it is necessary to be problem-oriented and adhere to scientific theories to guide the construction of lenient rules for confessing guilt and accepting punishment. First of all, from a legal point of view, "admitting punishment" means a consultation mechanism with Chinese characteristics for confession, which should be formally recognized by Chinese law. The possible meaning of "confession of punishment" as a term and the meaning of "admission of punishment" as a legal concept are two different categories of issues. "Admission of punishment" in China's Criminal Procedure Law refers to the defendant's approval of the punishment plan proposed by the procuratorial organ. The core essence of punishment is the consultation sentencing recommendation, and "consultation" is the essential requirement of "punishment". Drawing on different versions of foreign plea negotiation rules, when constructing a plea consultation mechanism in China, the first thing is to move from obligation-based to rights-based, and then it is necessary to build scientific and reasonable prosecution and defense negotiation rules from the aspects of effective defense. Secondly, the concept of "leniency" seems simple, but it needs to combine the basic theory of criminal law with the leniency system of guilty pleas and punishment in order to accurately grasp its scientific connotation. Leniency includes lenient punishment in the sense of criminal law, leniency in the sense of criminal procedure law (including the application of non-custodial compulsory measures, withdrawal of cases, non-prosecution, etc.), and even lenient treatment in the sense of criminal enforcement law (such as staying in a place to serve sentence, lenient supervision, etc.), but the simplified/fast procedure does not constitute "lenient treatment". As far as rule construction is concerned, the directions that need to be carefully considered at present include: first, expanding the scope of application of the conditional non-prosecution system as an important governance measure for petty crimes; At the same time, the practice of "withdrawing cases" in the reform was abolished. Second, from both the aspects of system and practice, expand the function and application rate of the bail pending trial system. Third, reflect on the practice of "serving sentences in a detention center" (where detention centers serve fixed-term sentences with the remaining sentences of less than three months) and consider this as a measure of "leniency." Fourth, the concept of "admitting guilt and accepting punishment" does not have to be included in the criminal law, but the "attitude after the crime" should be taken as a general sentencing circumstance in the criminal law. Finally, reform should adhere to the correct concept of efficiency and achieve a higher level of unity between justice and efficiency. In addition to the "simplified trial model", the realization of "fast trial" litigation also includes the power expansion model, the structural change model, the rights protection model and the science and technology promotion model, so the efficiency improvement cannot be directly equated with the simplification of trial procedures. When constructing the rules for speeding up litigation, we need to deal with the relationship between efficiency and fairness, power and rights. Although the certification procedure has been simplified, there is a need to adhere to the statutory standard of proof. Although the duty lawyer system plays an important role, it is only the minimum standard for full coverage of lawyers' defense. Therefore, first, it is necessary to improve the positioning and role of duty lawyers and clarify their attributes as "defenders"; Second, it is necessary to raise the level of legal aid and expand the scope of application of compulsory defense. The trial procedures of plea cases should also reflect "trial-centered", written trials should be reasonable and feasible, and substantive reviews should be conducted in court procedures for "the voluntariness of pleas of guilt and punishment and the authenticity and legality of the content of the plea and punishment statement", and at the same time, the system of final trial of the second instance should be adhered to.(AI翻译)

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