摘要
认罪认罚从宽案件的审理过程中出现了“投机型上诉”“留所服刑型上诉”等现象。为抑制被告人滥用量刑上诉,检察机关以抗诉加以应对,引发学界及实务部门的广泛争议。检察机关认为量刑上诉违反诉讼契约,损害诉讼效率,可以推出其非自愿认罪认罚从而导致一审裁判错误,进而提出抗诉。然而,以量刑上诉推出非自愿认罪认罚不符合认罪认罚的阶段性特征,不能推论一审裁判为“确有错误”。抗诉既不符合抗诉对象回溯性的特点,也不符合抗诉理由法定性的要求,容易诱发报复性抗诉从而不符合抗诉目的正当性的要求,抗诉理由与上诉理由混同不符合抗诉理由独立性的要求。尤其是,以抗诉应对量刑上诉系不合理限制上诉,有违二审终审制以及上诉不加刑制度,不利于改善现有机制控辩协商不足的缺点,可能会掩盖认罪认罚从宽中的问题。我国应当在保障上诉权的基础上采取措施简化二审程序,以化解滥用上诉权所带来的诉讼资源浪费问题,比如建立上诉说理制度、实行有限审查原则、缩短二审审理期限等。
The reform of the system of leniency for admitting guilt and accepting punishment raises the question of how to respond to defendants’abuse of their right to appeal.In many cases,after the defendant pleaded guilty and expressed the willingness to accept punishment,the court sentenced the defendant to a penalty within the scope of the sentencing recommendation made by the procuratorial organ on the basis of the signed recognizance to admit guilt and accept punishment,but the defendant appealed against the sentence,requesting the court of second instance to change the sentence to a lighter one.Many of these appeals were“speculative appeals”or“detention appeals”that abused the sentencing appeal system.To curb the abuse,procuratorial organs have responded to such appeals with protest,which has led to widespread controversy.Prosecutors argue that the appeal against sentencing in such cases violates the litigation agreement,reduces the efficiency of litigation,and proves the involuntary nature of the admission of guilt and acceptance of punishment by the defendant,which led to errors in the first instance verdict.However,the inference of involuntary admission of guilt from a sentencing appeal is inconsistent with the phase characteristics of the system;it cannot be inferred from the appeal that there is some“definite error”in a judgment or order of first instance;the protest does not meet the retrospective character of the object of protest or the requirement of statutory grounds for protest,but can easily lead to retaliatory protest;and by confusing the grounds for protest with the grounds for appeal,it also fails to meet the requirements of independence of the grounds for protest.Moreover,responding to an appeal against sentencing by protest contravenes the value orientation of China’s appeal system,suppresses the defendant’s legitimate right to appeal,undermines the trial system whereby the judgment of the second instance is final,is not compatible with the characteristics of insufficient negotiation between the prosecution and the defense in cases of leniency for admitting guilt and accepting punishment in China,and covers up the problems in the system of leniency for admitting guilt and accepting punishment.Therefore,unless there is more evidence to show that the defendant pleaded guilty and accepted punishment involuntarily,thus proving that the first-instance verdict is indeed erroneous,a protest should not be filed against the verdict.As for the question of how to effectively respond to the defendant’s abuse of the right to appeal,rather than carrying out a reform that restricts appeals,it is better to simplify second-instance trial procedures by focusing on the defendant’s reasons and facts for appeal,speeding up the litigation process,and improving litigation efficiency,so as to respond to appeals more quickly.China should,on the basis of guaranteeing the right to appeal,simplify the second-instance trial procedure by such means as establishing an appeal reasoning system,limiting the second-instance trial only to the review of the defendant’s reasons for the appeal and the prosecutor’s protest opinions,and shortening the time period of the second-instance trial,so as to prevent the waste of litigation resources brought about by the abuse of the right to sentencing appeal.
出处
《环球法律评论》
CSSCI
北大核心
2023年第2期193-209,共17页
Global Law Review
基金
江西财经大学法治江西建设协同创新中心2021年招标项目“推进国家治理能力现代化视角下认罪认罚从宽制度研究”的研究成果。
