认罪认罚制度中法官功能定位之理论检讨--以“制度角色-制度能力”为分析视角

The Theoretical Review of the Judge’s Functional Position in the System of Plea Guilty and Punishment

作为认罪认罚从宽制度的主角,法官的地位和作用没有得到理论界的充分讨论。在认罪协商程序中,法官要确保案件结果的准确性和认罪认罚的自愿性,并且有效控制不同程序类型及简化程度。但法官在控辩协商过程中的角色缺失、庭前阅卷的程序保障不足、在庭审程序简化职责反而增加的实践样态下,其制度角色与制度能力发生了悖反。故有必要引入“法官有限介入控辩协商”的制度设计,通过法官介入控辩协商的基础、时间点、形式和内容的构建,克服法官在认定事实和审查认罪认罚自愿性方面的弊端。同时,应当以法官是否介入控辩协商过程为界分,将认罪认罚案件的庭审区分为“形式审”与“实质审”,为法官提供充分的制度能力。

As the protagonist of the leniency system for pleading guilty and accepting punishment,the status and role of the judges have not been fully discussed in the theoretical circle.In the negotiation procedure of pleading guilty,the judges should ensure the accuracy of the result of the case and the voluntariness of pleading guilty and accepting,punishment and effectively control the different types of procedure and the degree of simplification.However,the lack of the role of the judges in the process of prosecution and defense consultation,the lack of the procedural guarantee of pre-trial review,and the fact that the trial procedure are simplified but the duties of the judges increased in practice,have led to the contradiction between their institutional roles and institutional capabilities.Therefore,it is necessary to introduce the system design of“limited involvement of the judges in the process of prosecution and defense consultation”,through the construction of the basis,time,form and content of the judges’involvement in the process of prosecution and defense consultation,so as to overcome the disadvantages of the judges in identifying facts and examining the voluntary nature of pleading guilty and accepting punishment.At the same time,it should be divided into“formal trial”and“substantive trial”according to whether the judge is involved in the process of prosecution and defense consultation,so as to provide sufficient institutional capacity for the judge.