起诉保留并附带公益服务的实践探索和制度完善——兼评醉酒危险驾驶案件的轻罪治理

Practical Explorations and System Improvement of Prosecution of Retention with Public Service--A Concurrent Review of Misdemeanor Management in Drunk Dangerous Driving Cases

起诉保留并附带公益服务与认罪认罚从宽制度相契合,符合刑事程序的比例原则,是相对不起诉制度与恢复性司法理念的有机统一,也是轻罪治理的创新途径。以醉酒危险驾驶案件为例,各地在起诉保留并附带公益服务机制的司法实践中,呈现出适用范围、启动程序、监督考察方面的差异。起诉保留并附带公益服务也存在着三对矛盾:起诉保留与违法惩治相抵牾,刑事惩戒与公益服务相抵牾,良法善治与执法异化相抵牾。通过明晰附带公益服务的具体适用范围,有助于检察机关规范行使自由裁量权;通过赋予犯罪嫌疑人程序选择权、反悔权,有助于提高行为人的参与积极性;通过有针对性地完善不同的考察方式,有助于进一步发挥附带公益服务的正向矫治功能;实施提交保证人、交纳保证金制度,采取电子监控措施,以及推行检察听证制度和建立举报制度,有助于提高起诉保留并附带公益服务机制的质效,进而实现轻罪的梯度化治理。

Prosecution retained and accompanied by public service fits with the system of leniency in guilty pleas and penalties,is consistent with the principle of proportionality in criminal procedure,is the organic unity of the system of relative non-prosecution and the concept of restorative justice,and is also an innovative way of managing minor offences.Taking drunk dangerous driving cases as an example,the judicial practice of the mechanism of prosecution retained with public service in various places presents differences in the scope of application,initiation procedures,and supervision and inspection.There are also three pairs of contradictions in prosecution retention and incidental public welfare services:prosecution retention contradicts the punishment of violations of law,criminal punishment contradicts public welfare services,and good law and good governance contradicts the alienation of law enforcement.By clarifying the specific scope of application of collateral public welfare services,it helps the procuratorial authorities to regulate the exercise of discretionary power;by granting criminal suspects the right to procedural choice and the right of remorse,it helps to increase the motivation of the perpetrators to participate;by improving the different ways of investigation in a targeted manner,it helps to further give full play to the positive correctional function of collateral public welfare services;and by implementing the system of submitting sureties and depositing bonds,and adopting electronic surveillance measures,as well as implementing the system of procuratorial hearings.The implementation of systems for the submission of guarantors and bonds,the adoption of electronic surveillance measures,and the introduction of a system of procuratorial hearings and the establishment of a reporting system have helped to improve the quality and effectiveness of the mechanism for retaining prosecutions and providing ancillary public-interest services,and thus to achieve the graded treatment of minor offences.