认罪认罚从宽案件检察院抗诉权表现实证研究

Empirical Study on the Performance of the Prosecution Protest Right Concerning Cases of Leniency of Guilty Plea

检察院启动抗诉是法律赋予的审判监督权,即检察院有权对法院做出法律适用错误或量刑不当的裁判结果提起抗诉。通过剖析判例发现,认罪认罚从宽抗诉案件呈现较低现象。检察院因被追诉人反悔上诉、一审法院未采纳量刑建议而提起抗诉的不同原因,也进一步了解到二审法院对检察院提起抗诉案件的不同态度,其中以维持原判居多。而二审法院的态度,在一定程度上无疑影响了检察院启动抗诉程序的积极性。为此,针对被追诉人反悔上诉和法院拒绝采纳量刑建议的态度,提出查明被追诉人认罪认罚真实意图,加重被追诉人不正当反悔上诉刑罚,庭前会议审核量刑建议机制以及检察院应当勇于且坚持启动抗诉程序等改良建议,有助于保障认罪认罚从宽制度立法目的得以真正落实落地。

The initiation of protest by the prosecution authority is the judicial supervision power endowed by the law;that is, the procurator has the right to lodge a protest against the court’s decisions resulting from its wrong application of law or improper sentencing. Through analyzing the cases, a relatively small number of cases of leniency of guilty plea are found. The reasons that the procuratorate filed a protest may lie in the fact that the accused repents and lodges an appeal after guilty plea and the court of first instance fails to adopt the sentencing recommendations, and it is further learned that the court of second instance may take different attitudes towards the cases protested by the procurator, most of which are to maintain the original judgment. The different attitudes taken by the court of second instance has, to some extent, undoubtedly affected the initiative of the procurator to start the protest procedure. For this reason, in view of the attitude of the accused’s appeal after guilty plea and the court’s refusal to adopt sentencing recommendations, this paper puts forward improvement suggestions of finding out the true intention of the accused’s confession and punishment, of aggravating the punishment of the accused’s unjust repentance appeal, of establishing mechanism in reviewing the sentencing recommendations at the pre-trial meeting, and the procuratorate being brave and persistent in initiating the protest procedure. All these will ensure that the legislative purpose of the system of leniency of guilty plea and giving lenient punishment can be truly implemented.