认罪认罚从宽中的被告人认罪答辩程序研究

发布时间：2018-04-19 22:32

本文选题：认罪答辩 + 认罪认罚从宽　；参考：《湘潭大学》2017年硕士论文

【摘要】：确保被告人认罪的自愿性、明智性和符合基础事实是认罪认罚从宽制度的前提,同时也是诉讼程序简化的底线。目前我国正在运行的简易、速裁、刑事和解等被告人认罪程序中,法官对被告人认罪的合法性审查过于简单化。在这种现状下,理论和实务界仍在不断的探索提高诉讼效率的方式,这给被告人的权益和以认罪为前提的刑事审判带来了较大的风险。因此,构建由中立法官对被告人认罪的合法性进行专门审查,并做出权威性裁决的被告人认罪司法审查机制,是防止认罪案件审判风险和完善认罪认罚从宽制度的重要课题。被告人认罪答辩程序是法院在正式审判前,对做出有罪供述或具有认罪意向的被告人,组织公诉人、被告人及其辩护律师到庭,由法官对他认罪的“自愿性、明智性及认罪的基础事实”进行审查,并做出具有程序效力的审查结果的程序。被告人认罪答辩程序具有保障被告人合法权益,促进由中立法官推动下的案件繁简分流和防止因被告人“认罪”不合法引起的程序反复等程序价值。然而,我国的刑事诉讼程序,未建立起保障犯罪嫌疑人、被告人自愿认罪和确保其合法性的规则体系,被告人在侦诉阶段难以保障其自愿认罪的权利,而在审判阶段又缺乏中立法官对其认罪合法性的审查确认。由此可能带来被告人被迫认罪、控辩双方违法协商以及被告人当庭翻供引发的程序反复等问题,促使我国有必要在被告人认罪案件正式审判前设置独立的认罪合法性审查程序。我国当前正在进行的“完善认罪认罚从宽制度”改革,预示着未来刑事案件会以被告人是否认罪为案件繁简分流的区分标准,那么加强对被告人认罪合法性审查也将成为案件分流的关键所在。同时,域外国家对如何保障被告人认罪合法已有比较成熟以及可以借鉴的制度和经验,这为我国建立被告人认罪答辩程序提供了有利条件。构建被告人认罪答辩程序,应当明确它的性质是一个诉讼化的听审程序,并且以最低限度公正、认罪自愿、程序正当以及程序独立原则作为构建原则。具体制度上,认罪答辩程序应当适用于所有的认罪案件,将其作为认罪案件审理的前置程序。由控辩审三方参与,明确审理案件的法官、被告人及其辩护人、检察官和被害人等主体在程序中所享有的权利(权力)和应当履行的义务(职责)。同时,要保证被告人认罪答辩程序能够得到良好的运行,还应当建立法官专人专审制度、强制辩护制度等配套措施。
[Abstract]:To ensure that the defendant pleads voluntarily, wisely and in accordance with the basic facts is the premise of lenient admission and punishment system, and also the bottom line of simplifying the procedure. At present, in the process of simple, quick judgment, criminal reconciliation and so on, the judge's examination of the legality of the defendant's confession is too simplistic. In this situation, the theoretical and practical circles are still exploring ways to improve the efficiency of litigation, which brings greater risks to the rights and interests of the accused and the criminal trial on the premise of guilty plea. Therefore, it is an important task to construct the judicial review mechanism of the defendant's guilty plea, which is specially examined by the neutral judge to the legality of the defendant's guilty plea and make an authoritative decision. It is an important task to prevent the trial risk of the guilty plea case and to perfect the lenient system of guilty plea and punishment. The accused pleading guilty and defending procedure is the "voluntary nature" in which the court, before the formal trial, organizes the public prosecutor, the accused and their defence counsel to appear before the court, and the judge pleads guilty to the accused who has made a guilty statement or has the intention to plead guilty. The process of conducting a review of the underlying facts of wisdom and confession and of making the outcome of the review with procedural effect. The defendant plead guilty and plead procedure has the procedure value such as protecting the defendant's legitimate rights and interests, promoting the complicated case diversion promoted by the neutral judge and preventing the procedure repetition caused by the defendant's illegality of "pleading guilty". However, the criminal procedure in our country has not established the rule system to protect the criminal suspect, the defendant voluntarily pleads guilty and ensures its legality, and the accused can not guarantee his right to plead guilty voluntarily at the stage of investigation. In the trial stage, there is a lack of a neutral judge to confirm the legality of his guilty plea. This may lead to the defendants being forced to plead guilty, the illegal negotiation between the prosecution and the defense parties and the repeated procedure caused by the defendants turning their confessions in court, which makes it necessary for our country to set up an independent procedure of examining the legality of guilty pleas before the formal trial of the accused pleading guilty cases. The reform of "perfecting the lenient system of guilty admission and punishment", which is being carried out in our country at present, indicates that in future criminal cases, whether the accused pleads guilty or not will be taken as the differentiation standard for the complicated and diffused cases. Therefore, to strengthen the legality of the defendant guilty examination will also become the key to the diversion of cases. At the same time, foreign countries have mature system and experience on how to ensure the defendant plead guilty legality, which provides favorable conditions for our country to establish the defendant guilty plea defense procedure. In order to construct the defendant's plea defense procedure, it should be made clear that its nature is a litigious hearing procedure, and the principles of minimum fairness, voluntary plea, due process and independent procedure should be taken as the construction principles. In the concrete system, the plea pleading procedure should be applied to all the guilty cases and be regarded as the preprocessing procedure of the guilty plea case. With the participation of prosecution and defense, it is clear that the judges, defendants and their defenders, prosecutors and victims have the rights (powers) and duties (duties) they should perform in the procedure. At the same time, in order to ensure that the defendant plead guilty defense procedure can get good operation, we should also establish the judge special trial system, compulsory defense system and other supporting measures.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2

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