論量刑協商的性質和效力

通過確立認罪認罰從寬制度，我國刑事訴訟法引入了一種頗具特色的量刑協商機制。根據律師參與這一程式的方式，量刑協商可分為消極的量刑協商模式和積極的量刑協商模式，前者屬於一種最低限度的量刑協商，後者則屬於可產生積極效果的協商模式，有待於通過必要的制度保障而加以啟動。嫌疑人簽署的認罪認罰具結書屬於控辯雙方量刑協商的結果，具有量刑協議書的屬性，對於檢察官和被告人都具有法律約束力，但對於法官的裁判則不具有必然的法律效力。目前我國法律確立了法官形式審查為主、實質審查為輔的司法審查方式，未來有必要通過對不同程式的分流和幅度型量刑建議的推行，逐步完善法院的司法審查方式。對於法院採納量刑建議的裁決，被告人提出上訴的，要根據控辯雙方量刑協定的內容來確定是否構成程式反悔。律師當庭作無罪辯護的，不影響控辯雙方量刑協議的效力。

A special system of sentencing negotiation has been introduced into China’s criminal procedure law by the establishment of the system of lenient sentence for confession and acceptance of punishment. According to the way that lawyers participate in this procedure, sentencing negotiation can be categorized into two modes: negative mode of sentencing negotiation and positive mode of sentencing negotiation. The former belongs to a kind of minimum sentencing negotiation, while the latter can have positive effect, which needs to be activated through necessary system. The agreement for crime and penalty signed by defendant is the result of sentencing negotiation between the prosecutor and defendant, which has the attribute of agreement for crime and penalty. And it is legally binding on the prosecutor and the defendant, but not necessarily on the judge’s judgement. Nowadays we have established the judicial review mode that the judge takes the formalist check as the first place and takes the substantive check thereafter. In order to gradually improve the judicial review mode of the court, it is necessary to implement the diversion of different procedures and the range sentencing. If the defendant appeals against the verdict that the court has adopted sentencing agreements, the content of the sentencing agreement determines whether it is procedural repent. If the lawyer makes plea of not guilty on the court, the validity of the agreement of sentencing between prosecutor and defendant shall not be affected.