认罪认罚量刑建议的几个理论问题

Some Theoretical Issues Concerning the Suggestions for Imposing Penalties on Those Confessing to Their Crimes and Accepting the Punishments

在认罪认罚从宽制度的适用中,量刑建议是必要前提。量刑建议精准化的发展方向也得到理论界和实务界的支持,但仍有诸多问题需要加以研究和明确。为凸显认罪认罚从宽制度的价值,认罪认罚应当作为单独情节予以评价。在认罪认罚情节评价中应坚持体系化的思路,通过明确减让幅度,设定整体从宽上限,合理剔除与自首、坦白、赔偿损失等从宽情节的重合部分等方式,构建对认罪认罚情节的科学评价体系。要通过依法保障值班律师的有效法律帮助,完善量刑协商程序规则,规范量刑建议的内容与调整方式等,构建我国量刑协商程序,确保量刑建议在法治的轨道内进行。探索适当降低从宽量刑情节的证明标准,适用优势证明标准,以有利于被告人的人权保障。对法院无理由不采纳检察机关量刑建议以及被告人认罪认罚获得从宽判罚后无理由上诉的情形,应当依法合理运用抗诉手段,实现公正与效率的平衡。

In the system of imposing lenient penalties on those confessing to their crimes and accepting the punishments,the suggestions given by the procuratorate are a prerequisite for meting out penalties.The tendency towards precise specifications in such suggestions has won support from both the academic and the practical circles,but there are still many problems worthy of study and clarification.In order to highlight the value of the system mentioned above,the confession of crimes and acceptance of punishments should be evaluated as independent circumstantial elements.In the assessment of these elements,we should try to construct a scientific evaluative system by sticking to a systematic approach,specifying the degree of penalty reduction,setting the ceiling of the reduction,and reasonably excluding the overlapping with such circumstantial elements for winning leniency as voluntary surrender,confession and damage compensation.In order to build the procedures of the negotiation in meting out punishments and ensure that the suggestions for meting out punishments are on the track of rule of law,we have to,among others,make sure the access to the help offered by the lawyers on duty according to the law;improve the rules governing the procedures of the negotiation in meting out punishments;and standardize the content of the suggestions for meting out the punishments.We should also lower the standard of accepting the circumstantial elements and apply the criterion of preponderance of the evidence so as to facilitate the protection of human rights.In order to achieve the balance between justice and efficiency,the procuratorate should wield its power to present a protest to the court when its suggestions are rejected by the court or the defendant files an appeal against the decided lenient penalties imposed on him based on his confession of his crimes and acceptance of the punishments.