公诉案件刑事和解的契约理念及契约行为规范化

The Concept of Contract and Contractual Norms of Behavior in Cases of Public Prosecution of Criminal Reconciliation

刑事和解是一种以协商合作的形式来恢复原有秩序的案件解决方式,具有明显的契约性特征,是契约理念在公法领域的实现。刑事和解具有公法契约属性,包含着当事人法律地位平等、意思自治、对结果的可预测、契约信守、程序公开、透明等契约精神。但是,契约理念对和解制度是把双刃剑,在推动和解当事人人权保障价值理念的同时,对罪刑法定原则、平等等法律理念提出了挑战。因而,契约行为的规范化是保证刑事和解制度公平公正的必然。

Criminal reconciliation is a kind of consultation and cooperation in order to form to restore the original order in the case of solutions. It has the contractual character obviously, and is the reali- zation of the concept of contract in public law. Criminal settlement with the contract of the public law attribute contains the legal status of litigant equality, autonomy. The results can be predicted, con- tract commitment, open procedure, transparent, the spirit of contract. However, the concept of con- tract settlement system is a double-edged sword, in the protection of human rights and to promote recon- ciliation value idea, the principle of legality, equality, the idea of law presents a challenge. Therefore, standardized contract behavior is the guarantee of the criminal reconciliation system fair will.