“认罪认罚从宽”应警惕报复性起诉——美国辩诉交易中的报复性起诉对我国的借鉴

Be on Guard against Vindictive Prosecutions in System of Regulation of Leniency on Admission of Guilt and Acceptance of Punishment

"认罪认罚从宽"与"辩诉交易"有类似之处,检察起诉裁量权得以扩张,这在辩诉交易实践中产生了"报复性起诉",并针对这种违反正当法律程序条款的恶意起诉发展出了"报复性起诉抗辩"。"认罪认罚"制度客观上存在着报复性起诉的土壤,检察机关全程主导、控辩双方地位和信息不平等,存在报复拒绝认罪的被告人的危险。目前尚不存在建立司法审查制度的条件,但可以从启动"协商"的时间以及限制起诉裁量出发,从程序上予以制约。

There are some similarities between the system of leniency on admission of guilt and acceptance of punishment and plea bargain, such as the prosecutorial discretion is expanding, and the vindictive prosecution is arising in plea bargain, to restricting this vindictive prosecution which disobey the due process, a kind of defense named vindictive prosecution defense was developed. Now, the danger of retaliating defendant who refuses to plead guilty, is objectively exist in the system of leniency on admission of guilt and acceptance of punishment, in which procuratorial organs lead the whole process and the process is not equal between charge and defense. Now, conditions are not permitted to establish the system of judicial review, but we can work hard at the time starting negotiation and restricting the prosecutorial discretion.