二审上诉问题重述:以认罪认罚案件为例

Restatement of Appeal in the Second Instance:Take the Case of Confessing Crimes and Accepting Punishments as an Example

认罪认罚从宽制度实践中,有公诉机关以"抗诉加刑"应对被告人"反悔上诉",此种变相剥夺被告人上诉权的做法于法无据,且有违"上诉不加刑"等基本原理。"应否限制认罪认罚被告人上诉权"的问题,需要在考量我国上诉审运作逻辑和认罪认罚从宽制度的实施状况基础上得出结论。结合上诉权理论以及若干比较法经验,应明确认罪协商之基石在于"对抗基础上的合意",需有一系列制度安排予以保障;而认真观察我国认罪认罚从宽制度的立法渊源及司法实践,不难发现该制度运行充斥着职权主义,甚至强职权主义色彩。在完全实现审前正当程序保障、一审庭审实质化之前,我国二审程序功能的发挥,将仍遵循"职权主义自我修正"的逻辑主线--全面保障被追诉人的上诉权是题中之义。

In the practice of the system of imposing lenient punishments on those confessing to their crimes and accepting punishments, the procuratorial organ responses to the ’repentance appeal’ of the defendant by ’protest and additional punishment’. Such deprivation of the defendant’s right to appeal in a disguised way is groundless in law and violates basic principles, including the ’appeal with no penalty’. The issue of ’whether the right to appeal of the accused who confess to their crimes and accept punishments should be limited’ is supposed to be concluded on the basis of the operation logic of trial on appeal in China and the implementation of the system of imposing lenient punishments on those confessing to their crimes and accepting punishments. Combining with the theory of the right to appeal and other experience of comparative law, it should be clear that the cornerstone of plea bargaining lies in ’the consensus on the basis of confrontation’, which ought to be guaranteed by a series of institutional arrangements. However, by scrutinizing the legislative origin and judicial practice of the system of imposing lenient punishments on those confessing to their crimes and accepting punishments, it is not difficult to find that it is filled with inquisitorialism and even strong inquisitorialism in the operation process of the system. Before realizing totally the guarantee of pretrial due procedure and the substantive of the first instance court trial, the function of the second instance procedure in China will still follow the logical mainline of ’inquisitorialism self-correction’, which serves as the key point to fully guarantee the respondent’s right to appeal.