刑事合规立法模式之检审——以与认罪认罚的关系为视角

Criminal Compliance Legislative Model:Its Relationship with the Leniency System of Confession and Punishment

刑事合规立法模式应当采用融入认罪认罚的并合式,还是构建刑事合规特别程序的独立式,已是当前刑事法学界与实务界聚焦的前沿课题。刑事合规与认罪认罚之间的重合为融入认罪认罚的并合式提供了立法可能的空间,但立法技术的局限、归责原则的冲突以及发展趋势的背离,使得并合式不能充分发挥刑事合规应有的价值,因而遭到否定;两者之间的溢出使得构建刑事合规特别程序的独立式立法模式得到推崇,构建刑事合规特别程序应当考虑单位犯罪组织体责任论的归责模式、片段性集中的立法技术以及轻缓化的处理方式等现实基础。同时,鉴于刑事合规与认罪认罚之间的关系,从单位责任论出发实现从刑事合规到认罪认罚的衔接,从个人责任论出发实现从认罪认罚到刑事合规的衔接。

Whether the legislative model of criminal compliance should adopt a combined form with the leniency system of confession and punishment,or an independent form that allows the construction of special procedures for criminal compliance,has become a frontier topic both in the current academic research and practice.The overlapping between criminal compliance and the leniency system of confession and punishment provides a possible space for legislation to establish a combined model with the leniency system of confession and punishment.However,the limitations of legislative technology,the conflict of imputation principles and the deviation of development trend make the combination unable to give full play to the value of criminal compliance,so it is denied.The spillover between the two makes the independent legislative model of constructing special procedures for criminal compliance advocated.The construction of special procedures for criminal compliance should consider the realistic factors,including the imputation model of the theory of responsibility,the fragmented centralized legislative technology and the mitigation approach.At the same time,in view of the relationship between criminal compliance and the leniency system of confession and punishment,it is suggested that the connection from criminal compliance to the leniency system of confession and punishment should be based on the theory of unit responsibility while the connection from the leniency system of confession and punishment to criminal compliance should be based on the theory of personal responsibility.