“上诉不加刑”原则的异化与回归

Alienation and return of the principle of "Second Appeal Without Additional Punishment"

针对刑事诉讼中控辩审三方不平等的诉讼力量,上诉不加刑是以当事人诉讼权利制约国家刑罚权、审判权的特殊原则,系刑事诉讼独有的制度,对保障被告人上诉权,实现司法公正具有不可替代的法律价值。面对我国司法实践中存在的重实体轻程序、变相加刑等现状,新《刑事诉讼法》更加强调了这一原则的立法意义。应从观念上深刻理解上诉不加刑的内涵与理论依据,澄清一些模糊、错误的认识,同时在审判实践中切实贯彻这一原则,彻底杜绝各种变相加刑的异化现象,真正使其回归立法原旨。

For the three parties including the prosecution, the defence and the trial in criminal proceedings are not the equal pow- ers. The irreplaceable principle of the criminal procedure which named the ＂Second Appeal Without Additional Punishment＂ has been established. In this Principle, the procedural rights of the Parties could constraint the state power of punishment and the ju- risdiction..9 This Principle can protect the Appeal Right of the accused and realize the Justice of Judicature. Focusing on the en- tity and ignoring the program is becoming the present situation of the judicial practice. In order to rectify this alienation, the new Criminal Procedure Law emphasizes this principle＇ s legislative significance even more. We should deeply understand the conno- tation and theoretical basis of the principle of ＂Second Appeal Without Additional Punishment＂. Clearing up some vague and er- ror awareness. At the same time, we should practically implementing of this principle, completely eliminating the variety of dis- guised forms of additional punishment and returning the legislative purpose.