摘要
学界与实务界普遍将不起诉作为认罪认罚后的一种从宽形态,这就涉及认罪认罚从宽与不起诉之间的逻辑关联。从法教义学上看,不起诉并没有明显的从宽功能,而是检察机关对案件整体评价后行使的一种程序性处分权,并不属于认罪认罚后从宽处理中由法院行使的处罚权。在从宽泛化的语境中两者容易混同评价,实践中出现的操作矛盾就是由这种逻辑不清所引起。在实然层面,认罪认罚从宽对不起诉的影响表现为规范层面的逻辑认知仍然分裂、操作层面的逻辑归因尚不明确、评价层面的逻辑变量并不确定。在实然状态很难对不起诉形成清晰逻辑作用力的情形中,应当在应然状态中补强逻辑关系,即应当对认罪认罚之后的不起诉进行规范分析、不起诉在认罚框架下作为协商客体应当审慎、不起诉应当保证认罚形态的延续性。在认罪认罚从宽与不起诉的逻辑关系中,对从宽的理解不宜泛化、笼统,应当坚持两套独立的权力运行逻辑体系与评价机制,确保各自权力结构的稳定性。
The academic and practical field generally regard non-prosecution as a form of leniency after admission of guilt and acceptance of punishment,which involves the logical relation between the leniency system based on admission of guilt and acceptance of punishment and non-prosecution. From the perspective of law doctrine,non-prosecution does not have the obvious function of leniency,as is a procedural right of punishment after the overall evaluation of the case by the procuratorial organ,which is not the right of punishment exercised by the court in the case of the leniency system based on admission of guilt and acceptance of punishment. In the context of generalization,the two systems are easy to be evaluated in the similar way. In the representation of reality logic,the influence of the leniency system based on admission of guilt and acceptance of punishment on prosecution is manifested as that the logical cognition at the level of norm is still split,the logical attribution at the level of operation is not clear,and the logical variable at the level of evaluation is uncertain. In the case that it is difficult to form a clear logical force in the state of reality,the logical relationship should be strengthened,which contains the non-prosecution after confession and punishment should be connected through normative analysis,the non-prosecution should be prudent as the object of negotiation under the framework of punishment,and the non-prosecution should ensure the continuity of the form of punishment. In the logical relationship between leniency and non-prosecution,the understanding of leniency should not be generalized,and two independent logical systems of power operation and evaluation mechanism should be adhered to ensure the stability of their respective power structures.
作者
李大槐
师索
LI Da-huai;SHI Suo(The People's Procuratorate of Chongqing Nan'an District,Chongqing 401336;Southwest University of Political Science and Law,Chongqing 401120,China)
出处
《西南政法大学学报》
2020年第1期109-123,共15页
Journal of Southwest University of Political Science and Law
基金
重庆市人民检察院重大课题“新形势下检察机关强化监督职能研究”(CQJCY2018A01).
关键词
认罪认罚从宽
不起诉
逻辑关联
量刑建议
the leniency system based on admission of guilt and acceptance of punishment
non-prosecution
logical relation
sentencing recommendations
