摘要
认罪认罚从宽的程序价值不仅是过程和效率上的从简从快,还在于协商性司法所表达的程序正义。现行刑法已经在一定程度上吸纳了认罪认罚从宽的实体价值,具体表现为:刑法总则中,自首、坦白从宽规定与特定形态下的认罪认罚从宽相契合,认罪认罚促成“犯罪情节轻微”时可以“免予刑事处罚”;刑法分则中,若干条文都体现了对认罪认罚从宽的“个罪吸收”。主张将认罪认罚从宽“刑法总则化”的设计方案并不成功,因为认罪认罚尤其是“认罚”包含了不可或缺的程序性要素,将其置于刑法总则中有损于实体法应有的确定性,亦无助于实现控辩双方“平等武装”。认罪认罚从宽作为集成性法律制度,其实体价值足以在修改后的刑事诉讼法中被妥善安放;刑事诉讼法定位下的认罪认罚从宽制度,在兼顾一般性与特殊性的办案要求,将立法确定性与司法灵活性有机结合方面更具优势。我国刑事法律体系呈现着“立法严,用法恕”的特征,把认罪认罚从宽写进刑法与此不甚协调。应在对刑法分则条文和相关司法解释进行必要修改的同时,坚持认罪认罚从宽制度的刑事诉讼法定位。
The procedural value of the leniency system of pleading guilty and accepting punishment lies not only in the simplicity and efficiency of the process, but also in the procedural justice expressed by consultative justice. The current criminal law has absorbed the substantive value of the leniency system of pleading guilty and accepting punishment to a certain extent,which is specifically manifested as follows: in the general provisions of the criminal law, the provisions of leniency in surrender/confession are consistent with the leniency system of pleading guilty and accepting punishment in certain forms, and the criminal can be "exempted from criminal punishment" as pleading guilty and accepting punishment leads to "minor criminal circumstances";In the specific provisions of the criminal law, several provisions involving certain charges have absorbed the leniency system of pleading guilty and accepting punishment.The design system advocating that the leniency of pleading guilty and accepting punishment should be stipulated in the general provisions of criminal law is not successful, because pleading guilty and accepting punishment, especially "accepting punishment", contain indispensable procedural elements. Placing it in the general provisions of criminal law will damage the certainty of substantive law, and will not help realize the "equally armed" effect of the prosecution and the defense. The leniency of pleading guilty and accepting punishment, as an integrated legal system, can find its proper position in the revised criminal procedure law considering its substantive value;The lenient system of pleading guilty and accepting punishment,if put in the criminal procedure law, has more advantages in taking into account both the general and special requirements of handling cases, and organically combining legislative certainty with judicial flexibility. The criminal law system of China presents the characteristics of "strict legislation and lenient judicature", and it is not very harmonious to put the leniency o
作者
何剑
HE Jian(Hanzhong People's Procuratorate of Shaanxi Province,Hanzhong723000)
出处
《犯罪研究》
2022年第4期51-63,共13页
Chinese Criminology Review
关键词
认罪认罚从宽
自首
坦白
控辩平等
leniency system of pleading guilty and accepting punishment
surrender oneself
confession
equality of prosecution and defense
