| 摘要: |
| 论二审检察院能否新增抗诉请求及其合理控制 |
| 关键词: 二审抗诉程序、上一级检察院抗诉请求、上诉不加刑、辩护权 |
| DOI： |
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| 基金项目: |
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| On Whether the Second-Instance Procuratorate Can Increase the Protest Requests and Its Reasonable Control |
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| Abstract: |
| Regarding whether the Second-Instance procuratorial organ can add the protest requests not covered by the protest legal documents of the original procuratorate， there is no provision in the Criminal Procedure Law， and neither the Supreme People’s Procuratorate nor the Supreme People’s Court has put forward comprehensive and clear opinions， which leads to different practices of procuratorates and courts in practice． There is a lack of attention in this area of research， and the existing research is not convincing enough． Allowing the Second-Instance Court independently file a request for protest， which is versatile under the domestic procuratorial system， and it is also the requirement for the procuratorial organs to extend and exercise their right to appeal correctly， as well as the proper meaning of exerting the power of litigation supervision． In order to guarantee the defendant’s right of defense， the right of final adjudication of the second instance and the right related to the principle of “no additional penalty on appeal”， we should adopt the attitude of “authorization permission in principle + reasonable restriction”， requiring that within the scope of the accusation of the first instance， the second-instance procuratorial organ can only add new protest requests in favor of the defendant， or to add new protest opinions and reasons against the object of protest and the matters of protest against the defendant， and to inform the Second-Instance Court， the defendant and their defenders in time． The procuratorates at or above the provincial level should standardize this and improve the production of legal documents for protest accordingly． |
| Key words: Procedure of Protest in Second Instance, Upper Level Procuratorate, Protest Request, No Appeal Resulting in Additional Punishment, Right of Defence |
