认罪认罚案件中法院变更量刑建议的法理分析

Jurisprudence Analysis of Court’s Alteration of Sentencing Suggestions in Cases of Admitting Crime and Accepting Punishment

现行《中华人民共和国刑事诉讼法》和司法解释关于认罪认罚从宽制度的两个“一般应当”的规定,使检察量刑建议对法官量刑产生了很强的制约力。该规定虽有推动认罪认罚从宽制度改革落地的现实动因,但法理正当性不足,应当逐步予以完善。量刑建议和量刑情节不属于审判对象的范围,法院对其变更不受控审分离原则的调控。应当建构法院变更量刑建议的正当程序,保障利益相关者的合法权益。法院认为量刑建议明显不当时告知检察机关调整,不应被确立为法院的法定义务,而且告知时间可以灵活化,不限于庭审后。

The procuratorial sentencing suggestions have been made to exert a strong restraint on the sentencing by the two “shall-be” provisions of the current Criminal Procedure Law on the leniency system for admitting crime and accepting punishment. Although these provisions have promoted the leniency system reform, but the jurisprudence is insufficient and needs gradual improvement. Sentencing suggestions and sentencing circumstances are not in the scope of the trial object, and the changes made by the court are not regulated by the separation principle of charge and trial. It is necessary to construct a due process for the court to change sentencing suggestions to protect legitimate rights and interests of stakeholders. When the court holds that the sentencing recommendation is obviously inappropriate and needs adjustment, it is not a statutory obligation of the court to notify the procuratorate for adjustment. The time of notification can be flexible, not just limited to the period after the court trial.