刑事和解协议的性质研究

The Nature of the Criminal Reconciliation Contract

刑事和解协议属于效力待定的"公私兼合"的契约形式,被害方和加害方享有缔约权和请求权,行使刑罚权的公权力主体享有提议、审查和监督权。该审查决定程序是刑事和解协议的生效要件,不但具有独立的程序意义,也具有实体法上的意义。对该协议的审查包括了对"自愿性"和"合法性"的审查。

The criminal reconciliation contract is a both-public-and-private contract,and its effect is to be determined. For such a contract,both the offender and the victim have the rights to form it and to ask the judiciary to review it. In fact,the body having the penalty power can propose a motion,then review and supervise how it is done. The reviewing procedure from the judiciary is necessary for an effective contract,and it has both the procedural and subtantive values. Besides,the review involves the ＂ voluntary＂ and the ＂ legitimacy＂ of the contract.