我国上诉不加刑原则的不足与完善

Deficiency and Improvement of No Additional Punishment Resulting from Appeal in China

上诉不加刑是第二审程序中的一项特殊原则,因其特殊的法学价值,先后被世界上大多数国家所接受和采用。我国刑事诉讼法也确立了这一原则,但由于在立法上尚存不足与缺陷,从而导致了在司法中因适用不当易出现众多变相加刑现象。当前,人们对“不加刑”的具体含义及适用范围都缺乏统一的认识。本文对上诉不加刑原则存在的主要争论问题,进行了剖析。认为对上诉不加刑原则需要再认识,以便消除歧义,并处理好与之“有冲突”的司法原则的辩证关系,进一步完善其合理的具体规定,严格贯彻之,这样才能充分保障被告人的上诉权益。

As a special principle in trial of second instance, no additional punishment resulting from appeal has its particular law value and is widely accepted and adopted by most countries in the world. The Criminal Law of China estabhshed the principle but there existed deficiency and fault resulting in extended sentence because of misuse. The paper analyzed the arguments in no additional punishment resulting from appeal and presented that recognition could clear different meanings, the dialectical relationship of ＂corrflict＂ justice principle had to be cope with and that reasonable concrete regulations had to be improved and carried out strictly in order to safeguard fights of appeal of defendants. Furthermore, the paper put forward some suggestions.