我国控辩协商程序的规范进路:以认罪认罚案件为视角

认罪认罚从宽制度确立了具有中国特色的量刑协商模式。协商性司法模式的确立,使刑事诉讼的重心由审判阶段向审查起诉阶段前移,与对抗模式下的庭审实质化相对应,控辩协商实质化亦成为协商性司法模式的基本要求。然而,控辩平等协商作为协商性司法的核心和量刑合意形成的关键环节,却未受到立法、实务层面的应有重视,相应配套之程序性规则体系与保障措施的缺失,使得控辩协商的实施效果不尽如人意,控辩双方诉讼实力不平衡导致控辩协商实质性缺位成为司法实践中的突出问题。程序正义是刑事诉讼的灵魂。为增强控辩合意过程和协商结果的公正性,应探索控辩协商之规范模型,从控辩双方的主体地位、决策能力两个层面考量,探讨建立规范、具体、系统的控辩协商程序之基本方向和完善法律规范层面对控辩协商规制不足的路径。

Normative Approach of Plea Bargaining in China:From the Perspective of Cases Involving Confection and Acceptance of Punishment

The leniency system of pleading guilty and accepting punishments has created a sentencing consultation mode with chinese characteristics. The establishment of the consultative judicial mode makes the focus of criminal procedure move forward from the trial stage to the review and prosecution stage. While corresponding to the substantialization of court trial in the confrontation mode, the substantialization of negotiation between the prosecution and the defense has also become an core requirement of the consultative judicial mode. However, as the spirit of negotiated justice and the key of sentencing agreement, equal negotiation between the prosecution and the defense has not been attached great importance at the legislative and practical levels. The lack of procedural rules and safeguard measures have led to unsatisfactory implementation effect of the prosecution-defense negotiation procedures. In addition, the imbalance of litigation strength between the prosecution and the defense, which is the major obstacle on the road to the substantialization of negotiation, has also become a prominent problem in judicial practice. There is no doubt that procedural justice is the soul of criminal procedure. In order to enhance the fairness of prosecution-defense negotiation process and scentencing agreement, it is urgent that we should design a normative model for the prosecution-defense negotiation procedures from two aspects of subject status and decision-making abilities of the prosecution and the defense. Besides, it is also necessary to explore the basic directions of establishing a standardized, specific and systematic operation rules for the prosecutiondefense negotiation procedures, and the path to improve the regulation of prosecution-defense negotiation mechanism at the level of legal norms.