检察机关量刑建议权研究
发布时间：2018-08-26 10:10
【摘要】： 检察机关依法对刑事诉讼实行法律监督。这种刑事法律监督意在实行全方位全过程的监督,量刑无论从其过程还是从其结果来说,均应成为检察机关开展刑事法律监督的重要对象之一,而且从保障人权、维护公平正义的角度来看,量刑也理应成为检察机关履行法律监督职能的重要对象之一。检察机关量刑建议权本体价值在于实现刑事诉讼价值目标的实体正义与程序正义;量刑建议权目的价值在于追求诉讼经济与司法效率。全文从四个方面阐述检察机关量刑建议权。第一部分从理论上对量刑建议权进行梳理与界定,第二部分从国外司法实践中探析量刑建议制度的运行,第三部分着重论证我国检察机关行使量刑建议权的必要性,最后一部分探寻我国当前规范行使量刑建议权的环境、条件及途径。 首先,量刑建议权是一种基于公诉权的刑罚请求权,是由检察机关法律监督职能派生而来的一种司法请求权。具体地讲,量刑建议权指检察机关在庭审过程中,代表国家建议、要求审判机关对被告人处以某一特定的刑罚,对刑种、刑期、罚金数额、执行方法等方面提出相对具体的要求。量刑建议权具有合宪性、合法性、保障人权的宪政理论基础,符合现代刑事诉讼基本原理。 其次,量刑建议制度在国外的司法实践表明,不论是英美法系国家还是大陆法系国家,普遍地明确地赋予检察机关享有量刑建议权,并由检察官在提起诉讼的过程中行使。英美法系国家的量刑制度的特点在于其存在于一个完整而独立的量刑程序之中,与量刑建议有关的活动只能发生于量刑阶段。大陆法系国家的量刑建议制度,主要是通过检察官在诉讼活动中提出量刑建议及这一建议对法官的效力等一系列规定或习惯做法体现出来。 再者,我国当前法官自由裁量权过大一定程度上导致量刑不公、地区间的量刑不平衡。但由于当前检察机关公诉权能的局限性,造成事实上对量刑环节监督缺失,量刑建议受到贬抑,在这种情况下,赋予检察机关行使量刑建议权的必要性、重要性和迫切性不言而喻。量刑建议制度的建立,必将有利于维护司法廉洁、审判公正、量刑公开,提高当庭宣判率,减少当事人上诉、申诉,有利于公民增加法律知识,增强法律意识。 最后,在分析论证检察机关享有量刑建议权职责的基础上,进一步明确检察官量刑建议的方向应是在法定刑内提出相对精确的量刑幅度。并分别从量刑建议权应在立法上加以明确和完善,就建立健全量刑建议制度规范运作机制提出构想,对权利主体滥用权力行为和渎职行为的认定及应当承担相应责任予以规制。 总之,赋予检察机关量刑建议权,使其在微观上服务于在个案上实现罪刑相当原则,在宏观上服务于不同判决间实现适用刑法一律平等原则。通过检察机关开展量刑建议活动,把量刑的“暗箱”打开,让辩护方平等参与量刑活动,使控辩式诉讼主义更加明显。构建量刑建议制度,是检察机关开展法律监督的组成部分,是强化量刑监督的重要形式,是保障人权、维护社会公平正义、促进社会和谐的重要举措。
[Abstract]:The procuratorial organ exercises legal supervision over criminal proceedings in accordance with the law. This kind of criminal legal supervision intends to carry out all-round supervision over the whole process, and sentencing should become one of the important objects for the procuratorial organ to carry out criminal legal supervision in terms of its process and results, and sentencing should be carried out from the angle of protecting human rights and safeguarding fairness and justice. It should also be one of the important objects for the procuratorial organs to perform their functions of legal supervision. The ontological value of the power of sentencing suggestion lies in the realization of substantive justice and procedural justice in the value of criminal proceedings; the value of sentencing suggestion lies in the pursuit of litigation economy and judicial efficiency. The first part combs and defines the power of sentencing suggestion theoretically, the second part analyzes the operation of sentencing suggestion system from foreign judicial practice, the third part focuses on the necessity of our procuratorial organs to exercise the power of sentencing suggestion, and the last part explores the current environment, conditions and ways of standardizing the exercise of sentencing suggestion in our country.
First of all, the power of sentencing suggestion is a kind of judicial claim based on the right of public prosecution, which is derived from the legal supervision function of procuratorial organs. The amount of money and the method of execution put forward relatively specific requirements.
Secondly, the judicial practice of sentencing suggestion system abroad shows that the procuratorial organs are generally and explicitly given the power of sentencing suggestion in common law countries and civil law countries, and are exercised by prosecutors in the course of litigation. The characteristics of sentencing system in common law countries are that it exists in a complete and independent system. In sentencing procedure, the activities related to sentencing proposals can only occur at the sentencing stage. The system of sentencing proposals in continental law countries is mainly embodied by a series of regulations or customary practices, such as the proposals of sentencing put forward by prosecutors in litigation activities and the effectiveness of the proposals to judges.
Moreover, the excessive discretion of judges in China has led to unfair sentencing and imbalance in sentencing between regions to a certain extent. However, due to the limitations of the prosecutorial power, the supervision of sentencing links is in fact absent and sentencing suggestions are depreciated. In this case, it is necessary to give procuratorial organs the power to exercise sentencing suggestions. The importance and urgency of sentencing suggestion system is self-evident. The establishment of sentencing suggestion system will be conducive to safeguarding judicial integrity, fair trial, open sentencing, improving the rate of pronouncing sentences in court, reducing the appeals of the parties, appeals, conducive to citizens to increase legal knowledge and enhance legal awareness.
Finally, on the basis of analyzing and demonstrating the duty that procuratorial organs enjoy the power of sentencing suggestion, it is further clear that the direction of the prosecutor's sentencing suggestion should be to put forward relatively accurate sentencing range within the statutory penalty, and that the power of sentencing suggestion should be clarified and perfected in legislation, so as to put forward the structure of establishing and perfecting the system of sentencing suggestion to standardize the operation mechanism. It is necessary to regulate the cognizance of abuse of power and dereliction of duty of the subject of right and the corresponding responsibility.
In a word, the procuratorial organs should be given the power of sentencing suggestion, so that they can serve the principle of equivalence of crime and punishment in individual cases, and the principle of equality in application of criminal law in different judgments. Constructing sentencing suggestion system is an important part of legal supervision of procuratorial organs, an important form of strengthening sentencing supervision, an important measure to protect human rights, safeguard social fairness and justice, and promote social harmony.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D925.2
本文编号：2204535
[Abstract]:The procuratorial organ exercises legal supervision over criminal proceedings in accordance with the law. This kind of criminal legal supervision intends to carry out all-round supervision over the whole process, and sentencing should become one of the important objects for the procuratorial organ to carry out criminal legal supervision in terms of its process and results, and sentencing should be carried out from the angle of protecting human rights and safeguarding fairness and justice. It should also be one of the important objects for the procuratorial organs to perform their functions of legal supervision. The ontological value of the power of sentencing suggestion lies in the realization of substantive justice and procedural justice in the value of criminal proceedings; the value of sentencing suggestion lies in the pursuit of litigation economy and judicial efficiency. The first part combs and defines the power of sentencing suggestion theoretically, the second part analyzes the operation of sentencing suggestion system from foreign judicial practice, the third part focuses on the necessity of our procuratorial organs to exercise the power of sentencing suggestion, and the last part explores the current environment, conditions and ways of standardizing the exercise of sentencing suggestion in our country.
First of all, the power of sentencing suggestion is a kind of judicial claim based on the right of public prosecution, which is derived from the legal supervision function of procuratorial organs. The amount of money and the method of execution put forward relatively specific requirements.
Secondly, the judicial practice of sentencing suggestion system abroad shows that the procuratorial organs are generally and explicitly given the power of sentencing suggestion in common law countries and civil law countries, and are exercised by prosecutors in the course of litigation. The characteristics of sentencing system in common law countries are that it exists in a complete and independent system. In sentencing procedure, the activities related to sentencing proposals can only occur at the sentencing stage. The system of sentencing proposals in continental law countries is mainly embodied by a series of regulations or customary practices, such as the proposals of sentencing put forward by prosecutors in litigation activities and the effectiveness of the proposals to judges.
Moreover, the excessive discretion of judges in China has led to unfair sentencing and imbalance in sentencing between regions to a certain extent. However, due to the limitations of the prosecutorial power, the supervision of sentencing links is in fact absent and sentencing suggestions are depreciated. In this case, it is necessary to give procuratorial organs the power to exercise sentencing suggestions. The importance and urgency of sentencing suggestion system is self-evident. The establishment of sentencing suggestion system will be conducive to safeguarding judicial integrity, fair trial, open sentencing, improving the rate of pronouncing sentences in court, reducing the appeals of the parties, appeals, conducive to citizens to increase legal knowledge and enhance legal awareness.
Finally, on the basis of analyzing and demonstrating the duty that procuratorial organs enjoy the power of sentencing suggestion, it is further clear that the direction of the prosecutor's sentencing suggestion should be to put forward relatively accurate sentencing range within the statutory penalty, and that the power of sentencing suggestion should be clarified and perfected in legislation, so as to put forward the structure of establishing and perfecting the system of sentencing suggestion to standardize the operation mechanism. It is necessary to regulate the cognizance of abuse of power and dereliction of duty of the subject of right and the corresponding responsibility.
In a word, the procuratorial organs should be given the power of sentencing suggestion, so that they can serve the principle of equivalence of crime and punishment in individual cases, and the principle of equality in application of criminal law in different judgments. Constructing sentencing suggestion system is an important part of legal supervision of procuratorial organs, an important form of strengthening sentencing supervision, an important measure to protect human rights, safeguard social fairness and justice, and promote social harmony.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D925.2
【引证文献】
相关期刊论文 前1条
1 刘怡;;对建立检察官量刑建议制度的思考[J];商业文化(上半月);2011年05期
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