“认罪认罚从宽”内涵再辨析

在认罪认罚从宽制度已被写入《刑事诉讼法》的背景下,通过反思实务状况,立法者须从基本概念着手,实现认罪、认罚、从宽之内涵的“破”与“立”。第一,建立与程序类型相适应的认罪成立标准,原则上,在速裁程序中,认罪须同时承认指控事实、承认犯罪、接受指控罪名。在简易程序、普通程序中,认罪主要偏重承认指控事实、承认犯罪,但不排斥被追诉人承认更多事项。第二,认罪与自首等相近情节之间存在概念交叉关系,其共同要件是如实供述,“概括认罪”“认事服判”不是认罪,但可能构成其它情节。第三,认罚以接受量刑建议为核心,包括接受刑罚与非刑罚的处罚结果,也包括对适用简化诉讼程序的同意,但不必然包括退赃退赔。第四,针对认罪认罚语境下的从宽体系,立法者须审慎破解“重复评价量刑情节”的难题,并辨明关于从宽处罚的若干问题。

On Re-analysis of Connotation of Admission of Guilt,Acceptance of Punishment and Leniency

By reflecting on the practice,considering the leniency system based on the Admission of guilt and acceptance of punishment has been written into the Criminal Procedure Law,it is imperative for the legislator to achieve"breaking" and"establishing" from the basic concept level about the leniency system.Firstly,establish a standard for"Admission of Guilt"in accordance with the type of procedures,which means in principle,in the Speedy Procedure,the Admission includes the facts of the accusation,the confession of the crime and the charged crime,and in Summary Procedure and Ordinary Procedure,the Admission mainly focuses on the facts of the accusation,the confession of the crime,but does not exclude the accused from admitting more matters.Secondly,there is a conceptual cross-cutting relationship between"Admission of Guilt"and surrender and other similar sentence circumstances.Between these circumstances,the common element is confessing the facts of the crime truthfully.Thirdly,the core of the"Acceptance of Punishment"is acceptance of sentencing proposal made by the prosecution authorities,and it includes criminal penalties and non-criminal penalties,as well as recognition of expedited procedures,but does not necessarily include refunds.Fourthly,considering the" Leniency",the legislator should reflect on the new difficulties in the practice of"repetitive assessment of the circumstances of penalty",and identify some issues concerning the lenient punishment.