《刑事诉讼法》再修改应在二审程序中确立禁止不利变更原则

Establishing the Principle of Prohibition of Adverse Modifications in the Second Instance Procedure in the Further Revision of the Criminal Procedure Law

根据现行法律规范,在“余金平交通肇事案”中,二审法院改判加重被告人刑罚并无错误。该案件之所以引发热烈讨论,其根源在于中国刑事二审程序中确立的上诉不加刑原则在立法上并不周延,其在适用上存在依主体确定、“刑”所指涉范围过窄、上诉后存在程序转换易滋生变相加刑的缺陷。着眼于化解上诉不加刑原则的固有问题及认罪认罚从宽制度改革所带来的新问题,在《刑事诉讼法》再修改时应当在二审程序中确立禁止不利变更原则,增加为被告人利益的上诉和抗诉,二审法院不得作出不利于被告人的裁判变更的规定,并可以设置例外情形。与此同时,需要强化对“不利”的判断,并将二审法院发回重审、主动启动再审程序纳入禁止不利变更的适用范围,从而消除“上诉不加刑”原则所面临的守正和创新之间的冲突。

According to the current legal norms,the second-instance court’s decision to increase the defendant’s penalty in the“Yu Jinping Traffic Accident Case”was not erroneous.The root cause of the heated discussion in this case is that the principle of non-increase of sentence on appeal established in the second-instance criminal trial procedure in China is not well legislatively extended,and its application has the defects of being confirmed by the subject,the scope of“punishment”is too narrow,and there are defects that the procedural conversion after appeal is likely to breed disguised increase of sentence.Focusing on resolving the inherent problems of the principle of not increasing sentences on appeal and the new problems brought about by the reform of the plea leniency system,the principle of prohibiting adverse modifications should be established in China’s second-instance criminal trial procedures in the further revision of the Criminal Procedure Law,and appeals and prosecutorial counter-appeals for the benefit of the defendant should be added,and the second-instance court must not make provisions on modifications of the judgment unfavorable to the defendant,and may set up exceptions.At the same time,it is necessary to strengthen the judgment of“unfavorable”and include the remand of the court of second instance for retrial and the initiation of retrial procedures as a guarantee in the scope of application of the prohibition of adversemodifications,so as to eliminate the conflict between integrity and innovation faced by the principle of“non-increase of sentence on appeal”.