認罪認罰從寬制度中被追訴人權利保護研究—以公正與效率的動態平衡為基點

Research on the Protection of the Accused's Rights in the Leniency System of Guilty Plea and Punishment - Based on the Dynamic Balance between Justice and Efficiency

Student thesis: Doctoral Thesis

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Award date10 Nov 2021

Abstract

2014年10月,中共中央十八届四中全会审议通过《关于全面推进依法治国若干重大问题的决定》,提出“推进以审判为中心的诉讼制度改革,确保侦查、起诉的案件事实证据经得起法律的检验。”这一改革以对诉讼活动投入大量司法资源为前提。作为配套制度,同时提出“完善刑事诉讼中认罪认罚从宽制度”,通过对认罪认罚案件的快速办理,实现案件繁简分流。经过分别为期两年的速裁程序和认罪认罚从宽制度试点之后,2018年10月26日,刑事诉讼法修订,正式确立了认罪认罚从宽制度。

认罪认罚从宽制度具有双重价值,一是鼓励被追诉人认罪认罚,减少对抗,化解社会矛盾,二是通过被追诉人认罪认罚,简化诉讼程序,提高诉讼效率,节约司法资源。在该项制度中,通过被追诉人减让部分诉讼权利,获得从宽处理,从而实现诉讼效率的提升和诉讼效果的优化。这种诉讼制度价值的实现有赖于被追诉人获得公正的待遇,表现为立法和司法对被追诉人权利的保护。但是,对诉讼效率的追求,使得被追诉人的权利保护容易被弱化。如果被追诉人的权利没有得到保障,一方面难以保证其认罪认罚是自愿且明智的,可能造成实体上的不公,另一方面会造成程序上的不正当,让其感受不到法律的公正与关怀,也就难以真正的悔罪。在认罪认罚从宽制度中,保护被追诉人的权利,需要关注公正与效率的平衡。如果过于追求诉讼效率,势必导致诉讼权利保护的弱化,而如果过多强化诉讼权利保护,则难以提升诉讼效率,制度的优势就无从体现。为此,有必要结合被追诉人权利保护的一般理论,针对认罪认罚从宽制度的特殊性,研究该项制度中被追诉人权利保护的理论问题和实现路径。

本文以公正与效率的动态平衡为基点,分三个部分四个章节研究认罪认罚从宽制度中被追诉人的权利保护,以探寻认罪认罚被告人权利保护的特殊性,丰富刑事被追诉人权利保护的理论,完善相关诉讼制度,为司法实践提供认罪认罚从宽制度被追诉人权利保护的指引。正文分为三个部分共计四章:

第一部分即论文第二章,论述认罪认罚从宽制度与被追诉人权利保护的基本问题。认罪认罚从宽制度是一种协作性司法,具有效率导向,而权利保护又是一种以对抗、不信任为前提的制度,注重公正导向。

在认罪案件审理制度发展的过程中,对于认罪的要求、认罪的后果以及程序的适用出现了一些变化,总的趋势是对认罪认罚的被告人,给予量刑优惠,从而简化诉讼程序,提升效率。认罪认罚从宽制度在追求效率价值的同时,要关注公正价值。被追诉人权利是人权的重要组成部分,能够直观反映一个国家和地区的人权保护水平,我国的诉讼人权保护有待进一步完善,要强化对公权力的制约,加强私权利的供给,同时要善意地落实权利保护。对于以追求效率为导向的认罪认罚从宽制度,更应该关注被追诉人权利的保护,包括两个层次的权利:(1)原生权利即第一层级的权利,包括认罪自愿性的权利即免于被迫自我归罪权和认罚自愿性的权利即量刑协商权;(2)派生权利即第二层级的权利,主要包括程序选择权、律师帮助权、保释权、救济权等。保护认罪认罚从宽制度中被追诉人的权利,需要保持公正与效率之间的动态平衡。

第二部分即第三、四章,针对认罪认罚从宽制度的两个核心要素论证被追诉人权利保护的问题和实现路径。

第三章研究认罪自愿性的保障问题,涉及到免于被迫自我归罪权的保护问题。在认事基础上的认罪有典型(承认指控罪名)和非典型(承认构成犯罪)之分。违心认罪有多种类型,严重程度不同,发生的几率不同,需要采取针对性防范措施。认罪认罚从宽制度与免于被迫自我归罪权并不冲突,本身不会导致被追诉人虚假认罪,但要防范司法人员强迫、引诱被追诉人认罪,要将此作为被追诉人权利保护的重点。对认罪认罚案件要坚持“证据确实、充分”的一般证明标准,在审查起诉阶段实行证据开示制度,甄别、防范被追诉人对案件定性的“误认”,审判机关要加强审查。

第四章研究认罚自愿性的保障问题,核心是保障被追诉人的量刑协商权。将认罚做类型化区分,有利于保障被追诉人的权利。认罪认罚是独立的量刑情节,据此对被追诉人从宽处罚具有正当性,可以将从宽解释为包括从轻、减轻和免除处罚。我国已经在事实上形成了量刑协商制度,这一制度有利于保护被追诉人权利,增强其诉讼主体地位。量刑协商由控辩双方在审查起诉阶段开展,要确保过程和结果的公正性,可以通过制定量刑规范指引和发布指导案例等方式明确量刑标准,同时提升犯罪嫌疑人的协商能力,并赋予其在不同阶段的反悔权。应当在控辩双方充分协商的基础上提出量刑建议,是确定刑还是幅度刑要根据案情决定。量刑建议对公诉机关具有绝对拘束力,对被告人没有法律上的拘束力,而对法院具有相对拘束力,要赋予审判机关的审查职权。

第三部分即第五章,综合论述被追诉人权利保护的辅助路径,也是实现认罪自愿性和认罚自愿性的辅助性权利。

一是程序选择权,涉及到程序从简自愿性的实现。认罪案件程序从简具有正当性,不违背正当法律程序原则。但程序从简要以保障公正为限度,现行诉讼制度存在过于追求效率而忽视被追诉人权利的倾向,需要赋予被追诉人程序适用的选择权,通过立法和司法两个层面完善。

二是律师帮助权。律师参与是保障被追诉人认罪认罚自愿性、明智性需要,律师除了担任辩护人外,还可以为其提供法律帮助。在认罪认罚从宽制度中形成了值班律师提供法律帮助制度,但存在律师参与程度不高,律师提供法律帮助的效果有限等问题。有必要完善值班律师的法律规定,长远看应全面推行委托辩护和指定辩护制度,确保认罪认罚被追诉人均有辩护人参与诉讼。

三是保释权。获得非羁押性强制措施的权利即保释权,在认罪认罚从宽制度的实体和程序层面均有价值。要从制度设计上明确,对认罪认罚的被追诉人以非羁押性强制措施为常态,以羁押性强制措施为例外的原则。从实务操作层面,要调动诉讼各方适用非羁押性强制措施的积极性。

四是救济权,主要是上诉权的保护及限度问题。上诉制度倾向于公正价值,认罪认罚从宽制度倾向于效率价值,二者存在着冲突。在现行制度下,上诉权是被告人的法定权利,应当依法予以保障,但实践中存在被告人滥用上诉权和司法机关限制、变相剥夺被告人上诉权的倾向,司法机关应从一审、二审两个层面予以保障。为了规范上诉,实现公正与效率的平衡,应从立法层面作出调整:(1)对于认罪认罚后上诉案件,二审法院仅在被告人上诉范围内进行审查;(2)对于适用速裁程序审理的案件,被告人以事实不清、证据不足为由提出上诉的,发回重审后依法裁判,不受原判结果的影响。

综上,认罪认罚从宽制度中被追诉人权利的保护可以概括为:追求一个平衡,确保两个自愿,强化四项权利。追求一个平衡,是追求公正与效率的动态平衡;确保两个自愿,是确保自愿认罪和确保自愿认罚;强化四项权利,是强化程序选择权、律师帮助权、保释权和救济权。
In October 2014, the Fourth Plenary Session of the 18th Central Committee of the CPC, in its Decision on Several Major Issues Concerning the Comprehensive Advancement of the Rule of Law, proposed that "we should promote the trial-oriented reform of the litigation system to ensure that the facts and evidence of the cases investigated and prosecuted can withstand the examination of the law." As a supporting system, the Opinions also propose to "improve the system of leniency for guilty pleas and punishment acceptance in criminal proceedings" and realize the separation of complicated cases from the simple ones through rapid handling of cases involving guilty pleas and punishment acceptance. After a two-year trial process and the trial of the system of leniency for guilty pleas and punishment acceptance, on October 26, 2018, the Criminal Procedure Law was revised to formally establish the system of leniency for guilty pleas and punishment acceptance.

The system of leniency for guilty pleas and punishment acceptance has dual values. First, the accused is encouraged to plead guilty and accept punishment to reduce confrontation and resolve social conflicts. Second, the system of leniency for guilty pleas and punishment acceptance will simplify litigation procedures, improve litigation efficiency and save judicial resources. In this system, the accused party obtains lenient treatment by conceding part of his litigation rights to improve litigation efficiency and optimize litigation effects. The realization of the value of this litigation system depends on the fair treatment of the accused, which is reflected in the legislative and judicial protection of the accused's rights. However, the pursuit of litigation efficiency easily weakens the protection of the accused's rights. If the accused's rights are not protected, on one hand, it is difficult to ensure that he or she is willing to plead guilty and accept punishment, which may lead to injustice in substance; on the other hand, it is difficult to repentance. In the system of leniency for guilty pleas and punishment acceptance, it is necessary to pay attention to the balance between justice and efficiency. If he or she pursues litigation efficiency too much, it is bound to weaken the protection of litigation rights; and if he or she strengthens the protection of litigation rights too much, it is difficult to improve litigation efficiency. Therefore, it is necessary to combine the general theory of the accused's rights protection and the particularity of the system of leniency for guilty pleas and punishment acceptance.

Based on the dynamic balance between justice and efficiency, this paper studies the protection of the rights of those who are prosecuted in the system of leniency for guilty pleas and punishment acceptance by four chapters, in order to explore the particularity of the protection of the rights of those who plead guilty and accept punishment, enrich the theory of protection of the rights of those who are prosecuted, improve the litigation system, and provide guidelines for the protection of the rights of those who are prosecuted in the system of leniency for guilty pleas and punishment acceptance by judicial practice. The text is divided into three parts. There are four chapters:

The first part, namely, Chapter II, discusses the system of leniency for guilty pleas and punishment acceptance and the protection of the accused's rights. The system of leniency for guilty pleas and punishment acceptance is a kind of cooperation judicature, which is efficiency-oriented, while the protection of rights is based on confrontation and distrust.

In developing the trial system of guilty plea cases, some changes have taken place in the requirements of the guilty plea, the consequences of the guilty plea, and the application of procedures. The general trend is to give sentence concessions to defendants who plead guilty and accept punishment, thereby simplifying litigation procedures and improving efficiency. The system of leniency for guilty pleas and punishment acceptance should pay attention to the value of justice as well as the value of efficiency. The rights of the accused are an important part of human rights and can directly reflect the protection of human rights of a country or region. The protection of human rights in litigation of our country needs to be further improved. We shall strengthen the restriction on public power, strengthen the supply of private rights, and meanwhile implement right protection in good faith. With regard to the system of leniency for guilty pleas and punishment acceptance that is efficiency-oriented, more attention should be paid to the protection of the rights of the accused, which includes two levels of rights: (1) the original right, i.e., the right at the first level, including the right to voluntarily plead guilty, i.e., the right to be free from forced self-condemnation and the right to plead punishment voluntarily, i.e., the right to negotiate for sentencing; (2) the derivative right, i.e., the right at the second level, mainly including the right to choose procedures, the right to help a lawyer, the right to bail and the right to relief, etc. To protect the rights of the accused in the system of leniency for guilty pleas and punishment acceptance, it is necessary to maintain a dynamic balance between justice and efficiency.

The second part, namely, Chapter III and Chapter IV, aiming at the two core elements of the system of leniency for guilty pleas and punishment acceptance, to demonstrate the problem with the protection of the rights of the accused and the realization path thereof.

The third chapter studies the protection of the voluntary nature of guilty pleas, involving protecting the right to be free from coercion. Guilty pleas based on confessions can be classified into typical (admitting the charges) and atypical (admitting to constitute a crime). There are many types of guilty pleas, the severity is different, the probability of occurrence is different, and precautionary measures should be taken. The system of leniency for guilty pleas and punishment acceptance does not conflict with the right to be free from forced self-accusation, which itself will not lead to false confessions of guilt by the accused. Still, it should be taken as a critical point to protect the accused's right to be accused. For cases involving guilty pleas and punishment acceptance, the general standards of proof of "conclusive and sufficient evidence" shall be adhered to, and the evidence-based disclosure system shall be implemented at the stage of examination and prosecution to screen and prevent the "misidentification" of the nature of cases by the prosecuted, and judicial organs shall strengthen the examination.

The fourth chapter studies the issue of protecting the voluntary nature of punishment acceptance, which is to protect the accused's right to negotiate sentencing. Making a typological distinction of punishment acceptance is conducive to protecting the rights of those who are prosecuted. Pleas of guilty pleas and punishment acceptance is an independent circumstance of sentencing. Leniency can be interpreted to include leniency, mitigation and exemption of punishment. The system of sentencing negotiation has been formed in our country, which is beneficial to protect the accused's rights and strengthen its status as the subject of litigation. The negotiation on sentencing shall be carried out by the prosecutor and the defender at the stage of examination and prosecution, and the fairness of the process and results shall be ensured. The sentencing standards may be specified by formulating sentencing rules and guidelines, publishing guiding cases or otherwise, and the negotiation capability of criminal suspects shall be enhanced, and they shall be granted the right of repentance at different stages. The sentencing recommendations shall be made on the basis of full negotiation between the prosecutor and the defender, and the determination of punishment or the range of penalty shall be decided according to the case details. Sentencing recommendations are absolutely binding on the public prosecution organs and have no legal binding force on the accused, but relatively binding on the court; therefore, the sentencing recommendations shall be granted the examination power of the judicial organs.

The third part, namely Chapter V, which comprehensively discusses the supplementary path of the rights of the accused, which is also the supplementary right to realize the voluntary nature of guilty pleas and punishment acceptance.

First, the right to choose procedures, involves realizing the voluntary nature of simplified procedures. The simplified procedures for guilty pleas are legitimate and do not violate the principle of due legal procedures. However, the simplified procedures shall be limited to the protection of fairness, and the current litigation system tends to pursue efficiency too much and neglect the rights of the accused. Therefore, it is necessary to give the accused the right to choose the application of procedures, which shall be improved through the legislative and judicial levels.

The second is the right of lawyers to help. The participation of lawyers is a guarantee for the voluntariness and intelligent nature of the accused to plead guilty and accept punishment. Besides acting as the defender, lawyers can also provide legal aid. The leniency system of confessing guilt and accept punishment for duty lawyers has contributed to the formation of a system of providing legal aid. However, there are problems such as low participation of lawyers and the limited effect of providing legal aid. It is necessary to perfect the legal provisions of duty lawyers. In the long run, the system of entrusted defense and appointed defense should be fully implemented to ensure that every accused who pleads guilty and accepts punishment have their defenders participate in the litigation.

Third, the right to bail. The right to obtain non-custodial coercive measures, namely the right to bail, is of double value in the system of leniency for guilty pleas and punishment acceptance. In terms of system design, it is necessary to specify the principle that non-custodial coercive measures shall be taken as a norm for the accused who pleads guilty and accepts punishment, and the custodial coercive measures shall be taken as an exception. From the practical level, it is necessary to mobilize the litigant parties to apply non-custodial coercive measures.

Fourth, the right to remedy, mainly the protection and limitation of the right to appeal. There is a conflict between the system of appeal and the system of leniency for guilty pleas and the system of leniency for guilty pleas and accept punishment. Under the current system, the right of appeal is the legal right of the defendant, which shall be guaranteed in accordance with the law. However, the tendency of the defendant abusing the right of appeal and the judicial authority restricting or depriving the right of appeal of the defendant in a disguised form shall be guaranteed by the judicial authority from two aspects: first instance and second instance. In order to regulate appeals and achieve the balance between fairness and efficiency, adjustments should be made from the legislative level: (1) for the cases appealed after a guilty plea and punishment acceptance, the courts of second instance should only review the cases appealed by the defendants; (2) for the cases to which the immediate judgment procedures are applicable, if the defendants appeal on the ground of unclear facts and insufficient evidence, the cases should be remanded for retrial and the judgment should be made according to law, which is not affected by the results of the original judgment.

In summary, the protection of the rights of the accused in the system of leniency for guilty pleas and punishment acceptance can be summarized as: pursuing a balance, ensuring two voluntariness, and strengthening the four rights. To pursue a balance is to pursue a dynamic balance between justice and efficiency; to ensure two voluntariness is to ensure voluntary guilty pleas and punishment acceptance; and to strengthen the four rights is to strengthen the right to choose procedures, the right to help from lawyers, the right to bail, and the right to relief.

    Research areas

  • leniency for guilty pleas and punishment acceptance, Self incrimination, Sentencing consultation, Simplified procedure, relief right