摘要： 2018年《刑事诉讼法》新增的第201条要求人民法院“一般应当采纳”人民检察院在认罪认罚案件中提出的量刑建议。这一规定引发了检法两院之间以及学界的意见纷争,进而对司法实践产生了广泛影响。本文认为,“一般应当采纳”条款赋予认罪认罚案件量刑建议实体约束力的基础条件不能成立,违反了控审分离的诉讼原理和专门机关分工负责、互相配合、互相制约的宪法原则,违反了认罪认罚从宽制度的职权主义诉讼基础和认罪认罚情节的“裁量从宽”性质,也不符合两大法系协同型刑事司法的普遍经验。建议立法机关在第四次修改《刑事诉讼法》时废止“一般应当采纳”条款,并就认罪认罚案件与非认罪认罚案件量刑建议的采纳标准作出统一的规定。

关键词: 认罪认罚, 控辩协商, 量刑建议, 一般应当采纳

Abstract: The newly added Article 201 of the Criminal Procedure Law in 2018 requires people's courts to “generally adopt” sentencing recommendations made by people's procuratorates in guilty plea cases.This regulation has sparked disputes between the procuratorate and court, and among academia, and has had a wide-ranging impact on judicial practice.This article argues that the “generally should adopt” clause, which grants substantive binding force to sentencing recommendations in guilty plea cases, is basically untenable, violating the doctrine of separation of powers between the prosecution and the judiciary and the constitutional principle of “the Public Security Organs, the People's Procuratorate and the People's Court should each be responsible for their respective tasks, work together with each other, and act as checks on each other”.It is also against the inquisitorial tradition of the Chinese guilty plea system and the “discretionary leniency” nature for the circumstance of the accused's confession and acceptance of punishment, and does not conform to the universal experience of collaborative criminal justice in the two legal systems.The legislature should abolish the “should generally adopt” clause when amending the Criminal Procedure Law for the fourth time, and unify provisions on the adoption standards of sentencing recommendations for non-guilty plea cases as well as guilty plea cases.

Key words: Confession and Accepting of Punishment, Sentencing Recommendation, Should Generally Adopt, Abolish