认罪认罚从宽制度的刑法回应

The Criminal Law Response to Leniency System of Pleading Guilty and Accepting Punishment

从刑法角度看,认罪认罚是一种可以反映犯罪人人身危险性的酌定量刑情节。目前,司法机关对该情节的适用有三种模式,即与自首情节结合适用、与坦白情节结合适用和作为独立的酌定量刑情节适用。为了实现刑法与认罪认罚从宽制度的有效衔接,一些学者主张将认罪认罚情节法定化,并赋予其更大的从宽处罚功能。但从刑法的稳定性与罪责刑相适应原则的应然要求来看,这一立法举措既无必要性,也不具合理性。对于认罪认罚从宽制度,刑法立法应当从整体层面作出回应,即通过完善总则中的量刑根据规定,使其能够同时涵盖影响罪行轻重和人身危险性大小的因素,从而作为基本量刑规范来全面地发挥作用。

Within the perspective of criminal law,to plead guilty and accept punishment is a discretionary sentencing circumstance that can reflect the personal danger of the offender.At present,there are three modes for the application of this circumstance by judicial organs,namely,combining it with voluntary surrender circumstance,associating it with confession circumstance and applying it as an independent discretionary sentencing circumstance.In order to achieve the effective interface between criminal law and the leniency system,some scholars advocate the legalization of the circumstance of pleading guilty and accepting punishment and give it a greater function of lenient punishment.However,from the viewpoint of the stability of criminal law and the“ought to be”requirement of the principle of the adaptation of crime,duty and punishment,this legislative initiative is neither necessary nor reasonable.For the leniency system of pleading guilty and accepting punishment,the legislation of criminal law should respond to the overall level,that is,by improving the regulations of sentencing basis in the General Provisions,so that they can cover both the factors of affecting the severity of the crime and the degree of personal danger,so as to function comprehensively as the basic sentencing norms.