论认罪认罚具结书的证据属性及其司法适用

Evidence attribute and judicial applications of the affidavit of guilty confession and punishment

认罪认罚具结书的属性是个悬而未决的问题。从司法实务和理论上看,应当将认罪认罚具结书作为量刑证据的一种。通过明确认罪认罚具结书的属性,能够一定程度上证明认罪认罚的成立与否,还能够适当化解检法之间的紧张关系,特别是明确值班律师或者辩护律师在具结书上签字的行为效力以及出现冤假错案是否需要承担不利后果。认罪认罚具结书作为量刑证据,应当满足形式和实质上的要求。同时应当改变目前由检察机关承担被追诉人认罪认罚的举证责任,按照“谁主张,谁举证”的原则,由被追诉人一方承担具结书有效的证明责任。因检方具有压制被追诉人的动力和资源,也基于检察官客观义务,检察机关应当证明被追诉人认罪认罚的自愿性和真实性。法院对此负有监督责任。反悔后的具结书可将其作为证明被追诉人存在坦白情节的证据材料。

The attribute of affidavit of guilty confession and punishment is an unresolved issue.From the perspective of judicial practice and theory,it should be a kind of sentencing evidence.By clarifying the nature of the affidavit,it is possible to demonstrate whether the admission of guilt and acceptance of punishment is established or not,to properly ease the tension between the procuratorate and the court,and especially to clarify the validity of signature of the duty lawyer as well as the defense lawyer on the affidavit and whether there will be adverse consequences for lawyers in case of unjust,false and wrong cases.As a kind of sentencing evidence,it should both reach the requirements of form and substance.At the same time,the current burden of proof that the procuratorial organ bears the accused’s admission of guilt and punishment should be changed according to the principle of burden of proof borne by claimant,i.e.the defendant should bear the burden of proof that the affidavit is valid.Because the prosecution has the power and resources to suppress the accused,and also based on the objective obligation of the prosecutor,the procuratorial organ should prove the voluntariness and authenticity of the accused’s confession.The court has supervised responsibilities.The affidavit of repentance can be used as evidence to prove that the accused has ever confessed.