作者：周新
作者介绍：广东外语外贸大学法学院讲师，法学博士
出版日期：2018年12月9日
内容提要 在认罪认罚从宽制度被写入《刑事诉讼法》的背景下,立法者亟需解决该制度在试点期间存在的概念不清、规则不明的突出问题。厘清该项改革的内核,应当区别于自首、坦白和如实供述,"认罪"必然要承认指控事实和罪名,"认罚"是包含量刑建议在内的刑法评价后果,并在此前提下建构动态从宽体系;审判阶段认罪自愿性审查机制的构建应当从保障被追诉人知悉权、强调实质审查等方面着手;适当减轻负担,调整工作方式,以提高公安机关适用该制度的积极性;律师参与认罪认罚从宽制度的形式化问题突出;部分地区面临高上诉率的难题,其致因包括过高心理预期值、普通上诉制度缺乏针对性等,较之于突破"上诉不加刑"原则,适当限制上诉权是可取方案。
关键词 认罪认罚 从宽 自愿性审查 上诉
Abstract: Since the leniency system based on admission of guilt and acceptance of punishment was written into the Criminal Procedure Law, legislators need to resolve the outstanding problems of the system in the pilot period, such as unclear concepts and rules urgently. To clarify the core of reform, it should be distinguished from surrender, confession and truthful statement. "Admission of guilt" must admit accused facts and crimes, and "acceptance of punishment" is the consequence of the criminal law evaluation including the sentencing proposal to construct dynamic leniency system; The construction of review mechanism for admission of guilt voluntary at the trial stage should start from the protection of right to know and substantive examination; Appropriately reduce the burden and adjust the working methods to improve the enthusiasm of public security organs to apply the system; The formalization problem that lawyers participate in the leniency system based on admission of guilt and acceptance of punishment is highlighted; Some areas face the problem of high appeal rate. These factors are multiple, such as the high expectation of leniency system and impropriety of the general appeal system. So it is preferable to restrict the right of appeal compared with breakthrough of no appeal resulting in additional punishment principle.