性质、内容及效力:完善认罪认罚从宽具结书的三个维度

Nature, Content and Effect:Three Dimensions of Perfecting the Lenient Affidavit for Confession and Punishment Acceptance

认罪认罚具结书是认罪认罚从宽制度中的一个基础问题。其将审前程序中控辩双方关于嫌疑人罪责与程序问题的协商内容予以固定,同时作为审前程序的记载在后续的审判过程中成为法院审判的对象,因而在认罪认罚案件中居于承上启下的地位。而无论在理论还是实践层面,认罪认罚具结书均存在一些问题需要解决。完善认罪认罚具结书可以从三个基本维度入手。首先,认罪认罚具结书的性质在宏观层面可以界定为外具控辩双方协商表象下的受限合意,在微观层面则应理解为证明认罪认罚自愿性、真实性与合法性的过程证据。其次,具结书的内容应当包括控辩双方的主体身份、协商的结果、控辩双方的权力(利)义务、其他事项及具结书对控辩双方的法律效力五方面。最后,在法律效力上,认罪认罚具结书对于控诉机关具有拘束且禁止任意撤回的法律效力;对于被追诉人是允许反悔但应严格限制的法律效力,而对于审判机关则是预决但相对的法律效力。

The lenient affidavit for confession and punishment acceptance is a basic issue in the leniency system of confession and punishment acceptance. It fixed the contents of the consultation on the suspect’s criminal responsibility and procedure between the prosecution and the defense in the pre-trial procedure, in the meantime, as the record of pre-trial procedure, it becomes the object of court trial in the subsequent trial process, therefore, it serves as a link in the process of handling the case of confession and punishment acceptance. Whether in theory or in practice, there are some problems about the affidavit for confession and punishment acceptance to be solved. There are three basic dimensions to improve the theories of the affidavit for confession and punishment acceptance. Firstly at the microscopic level, the nature of the affidavit for confession and punishment acceptance can be defined as the limited agreement under the appearance of negotiation between the prosecution and the defense. At the microcosmic level, it should be understood as the process evidence to prove the voluntariness, authenticity and legitimacy of confession and punishment acceptance. Secondly, the content of the affidavit should include the subject identity of both parties, the result of negotiation, the rights and obligations of both parties, other matters and the legal effect of the statement on both sides these five aspects. Finally, in terms of force effect, the affidavit for confession and punishment acceptance has the legal force of binding on the prosecution organ and prohibiting arbitrary withdrawal. For the accused, it is the legal effect that allows renege but should be strictly controlled, while for the judicial organ, it is a pre-determined but relative legal force.