法院对“认罪”的审查——立法的纠结与法院的坚持

The Court’s Review of “Pleading Guilty”——The Entanglement of Legislation and the Insistence of the Court

认罪认罚从宽制度的立法在“协商模式”和“职权模式”之间纠结。法院对认罪认罚案件实质审查源于对客观真相的追求,是我国刑事诉讼职权主义的产物,也因审前对被告人权利保障不足。认罪认罚案件法院首先审查检察机关的指控是否正确,此时法院可能建议检察机关变更起诉;然后才是被告人是否“认罪”,包括对“认事”“认罪”和“认罪名”三个层面的审查,法院也可以建议检察机关调整量刑建议。目前相当高的量刑建议采纳率包含法院建议检察机关变更起诉和调整量刑建议的案件。法官要履行好对认罪认罚案件的实体审查责任,特别是对“认罪”这一基础的审查责任,才能更好地推进该制度的实施。

The legislation of the leniency system of pleading guilty and punishment is entangled between the "negotiation mode" and the "authority mode". The substantive examination of the case of pleading guilty and punishment by the court stems from the pursuit of objective truth, which is the product of the authoritarianism of criminal procedure in China and it is also due to the lack of protection of the rights of the accused before trial. In the case of pleading guilty and punishment, the court first examines whether the accusation of the procuratorial organ is correct, and at this time the court may suggest that the procuratorial organ change the prosecution;then whether the defendant "pleads guilty", including the examination of "pleading the facts", "pleading the guilt" and "pleading the charged crime", the court can also suggest the procuratorial organ to adjust the sentencing recommendation. At present,the relatively high acceptance rate of sentencing recommendations consists of cases in which the court recommends the procuratorial organs to change the prosecution and adjust the sentencing recommendations. In order to better promote the implementation of the system, the judge should fulfill the substantive review responsibility of the cases, especially on the basis of " pleading guilty ".