合意式刑事诉讼论

Theory on Consensual Criminal Procedure

随着我国刑事诉讼法相继确立刑事和解程序、速裁程序和认罪认罚从宽制度,一种新的刑事诉讼形式——合意式刑事诉讼,成为一种显性存在。学者们对此进行了理论概括,给予了不同的命名。与“合作式刑事诉讼”“协商性刑事诉讼”等名称相比,“合意式刑事诉讼”的名称更为贴切。合意式刑事诉讼的内容包括合意式刑事诉讼行为和合意式刑事诉讼程序。2018年刑事诉讼法搭建了合意式刑事诉讼的基本框架,但仍需对合意式刑事诉讼进行体系化建构,包括确立合意式刑事诉讼的专门原则,界定合意式刑事诉讼中当事人的诉讼权利,完善合意式刑事诉讼的起诉程序和审判程序。

With the establishment of criminal reconciliation procedure,fast-track sentencing procedure,and the system of leniency for admitting guilt and accepting punishment in the Chinese Criminal Procedure Law,consensual criminal procedure has become a dominant form of criminal procedure in China.Scholars have made theoretical summarizations of this new form of criminal procedure and used different terms to describe it.Compared with the terms of“cooperative criminal procedure”and“consultative criminal procedure”,the term of“consensual criminal procedure”is deemed to be more appropriate.Consensual criminal procedure includes consensual criminal litigation act and consensual criminal procedure.The former refers to the act by which the prosecution and the defense agree on specific matters in the criminal procedure on the basis of the defendant’s admission of guilt,while the latter refers to the sum of consistent litigation activities and litigation relations composed of the defendant’s admission of guilt,the consensus between the prosecution and the defense,and the judiciary’s handling of cases in accordance with the law and the consensus.Consensual criminal procedure and adversarial criminal procedure are two basic forms of criminal procedure.The basic framework of the consensual criminal procedure has been established in the 2018 Criminal Procedure Law,but the procedure still needs to be systematized by establishing the special principles of consensual criminal procedure,defining the rights of the parties in the procedure,and improving the prosecution and trial procedures.