从经验事实到规范研判:速裁上诉何去何从?

From Empirical Facts to Normative Judgment:What is the Future of the Right of Appeal in Fast-track Adjudicated Cases ?

通常认为拖延诉讼留所服刑、利用上诉不加刑再度求轻是速裁案件上诉权滥用的主要表现。本文通过实证分析发现,拘役刑速裁上诉案件确实存在量刑偏重的迹象,被告人本就应当留所服刑,上诉理由比较可信,认罪认罚从宽存在制度效能有限、量刑规范化不足等问题。有期徒刑案件量刑总体上并无明显不当,二审后留所服刑增量明显,上诉合理性值得怀疑,但案件流转期限不明、二审效率过低无疑为留所上诉提供了制度温床,也使得量刑纠偏陷入被动。综合考虑速裁案件一审裁判的正当性基础和比较法层面制度与实践的背离,我国不宜过早对上诉权加以限制。

It is generally believed that the abuse of right of appeal in fast-track adjudicated cases mainly is to file an appeal aiming at prolonging the litigation which makes serving in the detention center possible or to get more lenient sentence utilizing the principle of no additional punishment resulting from appeal.Based on the empirical analysis,this paper finds that there are some signs of excessive sentencing in the cases of criminal detention.Meanwhile,considering that these defendants should serve in the detention center originally,their grounds of appeal tend to be credible which uncover that the effect of the system of leniency on admission of guilty and acceptance of punishment is limited,the standardization of sentencing is defective and some other problems.Though the imprisonment terms are not significantly inappropriate,defendants in these cases who can serve in the detention center increased significantly after the appellate trial which makes the rationality of these appeals questionable.But the lack of restriction on the transferring term of cases and the inefficiency of the second-instance trial undoubtedly create conditions for these kinds of appeals institutionally and make the remedy of excessive sentencing more difficult.If we take these following factors into consideration,we will find that it is not advisable for China to restrict the right of appeal too early.Firstly,the legitimacy of the first-instance judgment of fast-track adjudicated cases is mainly based on the acceptability of substantive results.Secondly,the deviation between the system and practice at the level of comparative law is obvious.