论刑事辩护视域下认罪认罚程序的三个转向

On the Three Turns of the Procedure of Confession and Punishment from the Perspective of Criminal Defense

以控辩平等为基础、控辩协商为核心的认罪认罚从宽制度对刑事辩护的有效性提出了更高要求。现有制度安排下,刑事辩护陷入重重困境:抗辩式诉讼程序的阙如导致律师程序性辩护和控辩协商均难以开展;实质自愿性保障的不足妨碍被追诉人与辩护律师产生诉讼合力;法官程序控制的缺位致使律师辩护空间被再次压缩。未来,认罪认罚从宽制度完善面临三大转向:通过诉讼化改造审前程序,实现从非抗辩式程序朝抗辩式诉讼程序的转向;通过扩张辩方案件知悉权,实现从重视形式自愿性朝保障实质自愿性的转向;通过强化法官诉讼程序控制,实现从检察官主导认罪认罚程序朝法官主导认罪认罚程序的转向。完成这三大转向应坚持控辩平等原则,构建控辩协商制度,为律师进行高质量刑事辩护预留更多空间,提供更多便利,进而促进我国认罪认罚从宽制度和刑事辩护制度的理论创新与实践发展。

The leniency system of guilty pleas,which is based on the equality of prosecution and defense and centered on the negotiation between prosecution and defense,puts forward higher requirements for the effectiveness of criminal defense.Under the existing institutional arrangements,criminal defense gets into many difficulties:the absence of adversarial procedure makes it difficult to carry out procedural defense and negotiation between prosecution and defense;the lack of substantial voluntary guarantee hinders the prosecution and defense lawyers to produce litigation force;the absence of the judge's procedural control causes the lawyer's defense space to be compressed again.In the future,the improvement of leniency system of guilty pleas faces three major shifts:the transformation from non-defense procedure to defense procedure through the transformation of pretrial procedure,the shift from paying attention to the form voluntary to ensuring the substantive voluntary by expanding the right of the defense to know the case,and the change from procurator-dominated confession and punishment procedure to judge-dominated confession and punishment procedure by strengthening the judge's procedural control.To achieve the above three goals,we should adhere to the principle of equality between the prosecution and the defense,and construct the consultation system between the prosecution and the defense,so as to reserve more space and provide more convenience for lawyers to conduct high-quality criminal defense,and further promote the theoretical innovation and practical development of the leniency system of guilty pleas and criminal defense system in China.