论被追诉人认罪认罚反悔上诉权的规制——以检例第83号为样本

Regulating the Accused’s Right to Appeal after Confession and Acceptance of Punishment:Based on the Analysis of No.83 Guiding Case Released by the Supreme People’s Procuratorate

认罪认罚从宽制度是与以审判为中心的诉讼制度改革并不相悖的一项制度设计。在认罪认罚案件中,检察机关的量刑建议权实质上是一种求刑权,而非裁量权。此种量刑建议的效力因控辩审三方职能的差异而各异,而被追诉人也不因其签署了认罪认罚具结书,认可了检察机关的量刑建议而导致反悔上诉权的丧失。然而,在司法实践中,认罪认罚的被追诉人上诉理由有很大一部分系量刑过重,检例第83号正是此类案件的典型体现。为了避免被追诉人随意滥用上诉权的情形,司法机关应客观、审慎审查上诉理由是否正当。可以通过在审前确保控辩量刑协商合意充分、采取相对确定刑的量刑建议,在审中释明无正当理由上诉的不利后果,在审后借鉴“损失时间指令制度”等方法,对被追诉人的反悔上诉权进行一定的规制,以避免司法资源的无端浪费,促进认罪认罚从宽制度的有效实施。

China’s leniency system for confession and acceptance of punishment is compatible with the trial-centralized judicial reform.In cases where the accused pleads guilty and accepts punishment,the procuratorial organ’s sentencing recommendation is essentially the power to suggesting sentence,rather than the discretionary power.Thus,the legal effect of sentencing recommendation varies with the functions of three parties:the accusing party,the defendant and the trial party.Even if the accused signs the statement of confession and acceptance of punishment,he/she still has the right to appeal.In practice,most of the accused appeal for the reason of excessive sentencing,and the No.83 guiding case released by the Supreme People’s Procuratorate is a typical one.In order to avoid the abuse of the right to appeal after signing the statement of confession and acceptance of punishment,the judicial organs should examine objectively and prudently whether the appeal is based on reasonable grounds,and make decisions in individual cases.In pretrial stage,it is expected to ensure the sufficient agreement between the accusing and the defendant,and adopt the relative precise sentencing recommendation;in trial stage,the adverse consequences of appeal without reasonable grounds should be clearly stated and in post-trial stage,the“loss of time”order is introduced,so as to impose certain restrictions upon the accused’s right to appeal and to avoid unnecessary waste of judicial resources.Therefore,the leniency system for confession and acceptance of punishment is effectively promoted.