少捕慎诉原则化构建研究

Research on the principle construction of less arrest and cautious prosecution

少捕慎诉最开始作为一项办案政策由检察机关在未成年案件中提出,在我国历史发展过程中具有特定性以及不完整性的特征。少捕慎诉作为一项原则是捕诉一体改革的必要措施,是检察机关履行主导责任的必然选择,与当前认罪认罚从宽制度改革相契合。少捕主体因逮捕权的分散具有多样性,但少捕慎诉作为一个统一的整体主体应确定为检察机关。从增强认罪认罚从宽制度吸引力从而扩大少捕慎诉原则适用的角度,将适用范围确定为认罪认罚案件具有合理性。认罪认罚案件中贯彻少捕慎诉原则与检察权司法化存在张力,制度设计上应当将少捕慎诉纳入控辩协商的范围,以此保障少捕慎诉原则发挥实质效力。

As a case handling policy,the prosecution with less arrest and cautious prosecution was proposed by the procuratorial organs in juvenile cases at the beginning,which has the characteristics of specificity and incompleteness in the historical development of China.As a principle,the principle of“less arrest and cautious prosecution”is a necessary measure for the reform of the integration of arrest and prosecution,and an inevitable choice for the procuratorial organs to perform their leading responsibilities,which is in line with the current reform of lenient system of confession and punishment.Due to the dispersion of the power of arrest,the subject of less arrest and cautious prosecution,as a unified whole,should be determined as the procuratorial organ.From the perspective of enhancing the attractiveness of lenient system of confession and punishment,so as to expand the application of the principle of less arrest and cautious prosecution,it is reasonable to determine the scope of application as a case of confession and punishment.There is tension between the implementation of the principle of“less arrest and cautious prosecution”and the judicialization of procuratorial power.In the system design,it should be included in the scope of prosecution and defense consultation,so as to ensure that the principle of less arrest and cautious prosecution can play a substantive role.