认罪认罚案件被告人反悔的程序应对

The Procedural Response of the Defendant’s Repentance in the Case of Guilty Plea and Accepting Punishment

认罪认罚案件被告人的反悔行为已屡见不鲜,基于反悔的真实动因,司法机关的应对机制必然要有所差异。在最后陈述结束前,被告人能够以任何理由主张反悔,同时法官和律师要承担风险告知责任。若被告人仅就认罚部分反悔,且检察机关愿意调整量刑建议时,法官无需转换审判程序。被告人反悔后在认罪认罚时所作供述的证据资格与反悔理由的正当性直接相关。对于被告人无正当理由的上诉行为,检察机关抗诉既于法无据,又与抗诉权属性不符,采用上诉理由审查的方式规制反悔行为更为妥当。第二审程序发回重审后,被告人不能提出附带反悔。

It is common for the defendant.s repentance in the case of guilty plea and accepting punishment.Based on the real motivation of the repentance,the coping mechanism of the judicial organs must be different.Before the end of the final statement,the defendant can claim to repent for any reason,and the judge and lawyer should bear the responsibility of risk disclosure.If the defendant.s repentance only about accepting punishment,the judge does not need to change the trial procedure when the procuratorial organ is willing to adjust the sentencing proposal.The evidence qualification of the confession made by the defendant when he pleads guilty is directly related to the justification for the repentance.For the defendant.s appeal behavior without justifiable reasons,the protest of the procuratorial organ is not based on the law,but also inconsistent with the nature of the right of protest.It is more appropriate to limit the malicious act of repentance by means of appeal with cause in the case of guilty plea and accepting punishment.After the procedure of the second instance is remanded for retrial,the defendant can not put forward the incidental repentance.