认罪认罚与刑事和解的衔接适用研究

The Application Connection Between the Admission of Guilt and Acceptance of Punishmentand the Reconciliation of Criminal Prosecution-cases

在认罪认罚从宽制度已被写入《刑事诉讼法》的背景下,立法者亟需关注认罪认罚与刑事和解的矛盾样态。之所以出现被害人难以参与认罪认罚案件的现象,浅层致因是"影响效率说",即被害人的介入会损害案件办理效率。深层致因是"理念冲突说",即合作性司法理念与恢复性司法理念之间的张力关系。为了保证认罪认罚从宽制度与刑事和解程序的顺畅衔接,立法者应当遵循以下完善思路:第一,把握认罪认罚与和解在成立要件层面的"概念交叉"关系,肯定二者均具有独立的量刑意义,但须避免重复评价;第二,审慎界定认罪认罚从宽制度与刑事和解程序中被害人地位的差异性,赋予被害人有效参与的特定权利,并妥善处理被害人提出不当诉求的难题;第三,在具体规则领域,还需要提升不同诉讼程序类型的层级性,区分认罪认罚与和解在自愿性、合法性方面的审查标准,以及设计层级化的量刑从宽规则。

Now that the system of leniency based on admission of guilt and acceptance of punishment has been written into the Criminal Procedure Law,legislators need to pay attention to the contradiction between admission of guilt and acceptance of punishment and criminal reconciliation.There are shallow and deep causes of the difficulties faced by the victim in participating in leniency cases: the shallow cause is the “damage of efficiency”,that is,the victim's intervention will affect the efficiency of the handling of the case,and the deep cause is “judicial concept conflict”,that is,there is some inner tension between the concept of cooperative justice and the concept of restorative justice.To ensure the smooth connection between the leniency system and the criminal reconciliation procedure,legislators should adhere to the following line of thinking: 1) to accurately grasp the “conceptual overlapping” relationship between the two,to recognize that both have independent sentencing significance,and to avoid repetitive evaluation of penalty;2) to define the difference between the victim's status in the leniency system and that in the criminal reconciliation procedure,establish the specific right of the victim to effectively participate in the litigation,and appropriately handle the inappropriate claims made by the victim;3) to maintain a hierarchy of different types of litigation procedures in specific areas,set separate review standards on voluntariness and legality for the leniency system and the criminal reconciliation procedure,and design reasonable hierarchical lenient sentencing rules for different sentence circumstances.