认罪认罚“程序从宽”的理论反思

Theoretical Reflection on “Procedural Leniency” for Admitting Guilt andAccepting Punishment

“实体从宽”立足于宽严相济的刑事政策,承载着具有人文关怀的司法宽容精神,为认罪认罚“从宽”应有之义。但“程序从宽”中的强制措施从宽不仅在正当性上存疑,在可行性上也存有较大障碍。而诉讼程序从快从简的从宽则面临二重悖论,即程序加速与从快打击的矛盾、程序简化与权利放弃的抵牾。根植于诉讼效率的“程序从宽”虽满足了案多人少的现实司法需求,但却存在司法机关利益入侵被追诉人利益的风险,其客观上减少了裁判人员所获案件信息而易造成错判风险。若将程序的适用和变更视作可供交换的条件,极易诱使被追诉人主观上出现变相自我归罪、屈从型认罪认罚等现象。认罪认罚“从宽”内容的体系化构建应当坚持确定性、合目的性和可协商性原则,仍应坚守“正当程序”诉讼模式,如此才有可能破解因过分追求效率价值而产生错案的现实困境。

“Substantive leniency”is based on the criminal policy of combining leniency and severity,carrying the spirit of judicial tolerance with humanistic care,and is the rightful meaning of “leniency”.However,the leniency of compulsory measures in the“procedural leniency”not only raises doubts about its legitimacy,but also poses significant obstacles to its feasibility.Leniency of litigation procedures faces a dual paradox,that the contradiction between accelerating the procedure and swift crackdown,as well as the contradiction between simplifying the procedure and waiving rights.Although the leniency of litigation procedures rooted in litigation efficiency meets the practical judicial needs in the context of“more cases and fewer people”.Nevertheless,there is a risk of the interests of judicial organs invading the interests of the accused.It objectively reduces the amount of case information obtained by judges,which can easily lead to the risk of misjudgment.If the application and modification of the procedure are regarded as exchangeable conditions,it is easy to induce the accused to subjectively engage in disguised self confession or submissive confession.The systematic construction of the content of leniency for admitting guilt and accepting punishment should adhere to the principles of certainty,purposiveness,and negotiability,and still adhering to the“due process”litigation model.Only in this way can we possibly solve the practical dilemma of erroneous cases caused by excessive pursuit of efficiency value.