德国刑事协商制度对我国认罪认罚从宽制度的启示

The Implications of the Criminal Consultation System in Germany and Leniency System for Admitting Guilt and Punishment in China

德国刑事协商制度是职权主义模式下极具特色的认罪协商程序,该制度由法官主导协商进程,但法律规定与司法实践有着诸多冲突与矛盾。我国的认罪认罚从宽制度是《刑事诉讼法》贯彻宽严相济刑事政策的重要制度安排,德国刑事协商制度中的具体规定、价值追求以及矛盾冲突对我国有重要的借鉴意义。首先,认罪认罚从宽制度虽然由检察官主导但仍需要发挥法官在庭审中的实质作用;其次,认罪认罚从宽制度也应当坚持追求案件真相、要求法官对案件全面审查;再者,我国需要建立可撤回性证据规则,以便保障认罪认罚案件被告人的反悔权。

The German criminal consultation system is a distinctive Plea bargain procedure under the author-itarianism model. The system is dominated by judges, but there are many conflicts and contradictions between legal provisions and judicial practice. The leniency system for confession and punishment in China is an important institutional arrangement for implementing the criminal policy of combining leniency with severity in the Criminal Procedure Law. The specific provisions, value pursuits, and conflicts in the German criminal negotiation system have important reference significance for China. Firstly, although the lenient system of confession and punishment is led by prosecutors, it still needs to play the substantive role of judges in court trials;Secondly, the lenient system of confession and punishment should also adhere to the pursuit of the truth of the case and require judges to conduct a comprehensive review of the case;Furthermore, China needs to establish rules of retractable evidence to safeguard the defendant’s right to retract in cases of confession and punishment.