| 摘要: |
| 随着认罪认罚从宽改革的深入，认罪认罚从宽制度与二审程序的关联逐渐增强。透过二审程序中认罪认罚案件的实践面相，可以获得进一步推进认罪认罚从宽制度完善的新启示。整体视角下，认罪认罚从宽制度适用呈现为“合意达成”和“合意生效”的二元结构。两构成要件组合与二审程序的不同关联，塑造了二审程序中认罪认罚从宽制度的适用样态，具体表现为悔改型、补偿型、递进型和纠正型四种具体类型。对认罪认罚案件进入二审程序过滤乏力、二审程序认罪认罚从宽幅度不明确、控审机关权力行使缺乏理性是导致认罪认罚从宽制度二审适用类型繁多的成因。对此应采取以下措施。一是充分保障被追诉人享有认罪认罚从宽知悉权，贯彻存疑有利于被追诉人原则和实施附条件量刑建议，以减少认罪认罚案件进入二审程序。二是合理确立二审程序认罪认罚从宽幅度，保持从宽幅度在不同程序阶段的合理阶差，并允许特定情形下给予二审程序认罪认罚被追诉人额外的量刑激励。三是恪守司法权力的谦抑性，控审双方应理性对待具结书的效力制约和被追诉人上诉。同时，控审之间也应维持良性的权力制衡。 |
| 关键词: 认罪认罚从宽 二审程序 附条件量刑建议 存疑有利于被追诉人 权力谦抑 |
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| 基金项目:河南省哲学社会科学规划项目一般项目“行贿案件监察调查与检察自行补充侦查衔接机制研究”（项目编号： 2024BFX040）和河南省软科学研究计划一般项目“健全公共法律服务体系背景下法律咨询服务类服务机构治理研究”（项目编号： 252400410335） |
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| Analysis about Criminal Procedure of Second Instance in Cases of Confession and of Acceptance Punishment |
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Cui Wei
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| Abstract: |
| With the deepening of the leniency reform for confession and punishment, the relationship between the leniency system for confession and punishment and the second instance procedure is gradually strengthening. Through the practical aspects of cases involving confession and punishment in the second instance procedure, new insights can be gained to further promote the improvement of the leniency system for confession and punishment. From a holistic perspective, the application of the leniency system for confession and punishment presents a binary structure of “reaching agreement” and “taking effect agreement”. The different associations between the combination of the two constituent elements and the second instance procedure shape the application pattern of the leniency system for confession and punishment in the second instance procedure, which is manifested in four specific types: the repentance type, the compensation type, the progressive type, and the correction type. The lack of filtering in the second instance procedure for confession and punishment cases, the unclear range of leniency in the second instance procedure, and the lack of rationality in the exercise of power by the prosecuting authorities are the reasons for the diverse types of leniency in the application of the confession and punishment system in the second trial. In response, the following measures should be taken. The first is to fully guarantee the right of the accused to leniency in admitting guilt and punishment, to implement the principle that questioning is beneficial to the accused, and to implement conditional sentencing recommendations, in order to effectively reduce the number of appeals for admitting guilt and punishment entering the second trial process. The second is to establish a reasonable range of leniency for confession and punishment in the second instance procedure, to maintain a reasonable level of leniency at different stages of the procedure, and to allow for additional sentencing incentives to be given to the accused in specific circumstances. The third is to abide by the modesty of judicial power, and both the prosecution and the trial should rationally treat the effectiveness constraints of the written statement and the appeal of the accused. At the same time, a healthy balance of power should also be maintained between control and review. |
| Key words: Lenient Treatment for Admission of Guilt and Acceptance of Punishment, Application in Criminal Procedure of Second Instance, Conditional Sentencing Recommendation, In Dubio Pro Reo, The Modesty and Restraint of the Power of Public |
