摘要: |
内容:即使是认罪认罚从宽案件,诉审分离原则与法官保留原则仍然适用。从诉讼原理分析,量刑协议与量刑建议只具有相对的法律拘束力。对于认罪认罚从宽案件中,如无情势变更情形,法院应当将认罪协议与诉讼契约可作为新的量刑权重因素,尊重控辩双方的认罪协商结果;但如果出现公诉事实变化、适用法条变化、认罪不自愿真实等新情况,法院有权变更罪名与调整量刑幅度。盲目追求数字绩效,苛求量刑建议的采纳率,是认罪认罚从宽制度的歧路。只有当公诉事实与罪名不变、认罪真实性自愿性无争议、定罪证据充分、量刑建议依据的“基准刑”无争议等系列前提要件下,法院才“一般应当采纳”检察机关的量刑建议。 |
关键词: 量刑建议 相对效力 公诉变更 诉审分离 法官保留 |
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A Thoughtful Reflection on Generally Compliant with Prosecutors’ Sentence Recommendations in Sentencing Process |
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Abstract: |
Actually, Chinese prosecutors’ sentence recommendations are approaching and effective on the judger’s final decisions on the courts according by Criminal Procedure Code (Article 201), which also means restricting the judgers proportional judicial power in sentencing process. As a result of negative influence which Article 201 have been widely coming into force, some unexpected reactions have happened whether on procedure justice or penalty justice. In fact, the defendants’ rights of pretrial hearings and punishment arguments are generally denied in price of guaranteeing prosecuting. Meanwhile, the Article (201) has some negative influences on criminal procedural justice on the background of guilty plea process which literally robust the prosecutors with sentence recommendations. In as so much public prosecutors usually cannot investigate all the factors on crime with due diligence, finally the sentence recommendations by the prosecutors cannot represent full justice on criminal punishment. Some necessary judicial pretrial reviews on sentence recommendations case by case are important to reject some irrational recommendations for the court. By establishing calculus methodology of criminal punishment and rational proportionality on sentence circumstances, sentencing justice will come into reality and the principle of separation of power in criminal justice surely will also be sustained again. |
Key words: sentence recommendations judge’s exclusive power of minus civil rights special quanta of punishment range-only theory of punishment sentencing justice |