论认罪认罚从宽制度中“协商性基因”激活之路

认罪认罚从宽制度实质上是"协商性司法"的本土化表现,在两者机理存在交叠的条件下,探索该制度中内含的协商性要素便极具必要性,而探索的方向则是挖掘"协商性司法"与"对抗性司法"该两类模式间的联系。鉴于我国语境下的"协商"必然从"对抗"中萌芽,且对抗性司法又须以"以审判为中心"的刑事诉讼理念的落地为前提,因而,欲使该项制度就其附着的多元价值得到合理演绎,不仅需要与诉讼程序多样化的需求相适应,还应依照不同价值的特性适配以恰当的衔接机制。显然,审判中心诉讼格局的形成有可能为"重罪琐案"中控辩关系的重构加注推力,从而激活认罪认罚从宽制度中长期隐匿的"协商性基因"。

On the Ways to Activate the"Negotiation Gene"in the System of Leniency on Admission of Guilty and Acceptance of Punishment

In essence,the system of leniency on admission of guilty and acceptance of punishment is the localization of"negotiated justice".Under the condition of overlapping of the two mechanisms,it is necessary to explore the elements of negotiation contained in this system,and the direction of exploration is to excavate the relationship between the two modes of"consultative justice"and"adversarial justice".In view of the fact that the"negotiation"is bound to sprout from the"confrontation"in the local context,and the adversarial justice must be based on the implementation of the concept of"trial centered"criminal procedure,therefore,in order to reasonably deduce the multiple values attached to aforementioned system,it is not only necessary to adapt to the diversified needs of the proceedings,but also to adapt to the appropriate linkage mechanism according to the characteristics of different values.Obviously,the formation of the litigation pattern of the"trial center"may add impetus to the reconstruction of the relationship between the prosecution and the defense in the"serious crimes and trivial cases",so as to activate the"negotiation gene"hidden in the system of leniency on admission of guilty and acceptance of punishment for a long time.