认罪认罚案件的证明标准
孙长永认罪认罚案件的证明标准
Proof Standard for Conviction in Cases of Confession and Acceptance of Punishment
期刊名称：《法学研究》
期刊年份：
作者：孙长永
单位：西南政法大学诉讼法与司法改革研究中心/国家2011计划司法文明协同创新中心
中文关键词：认罪认罚;证明标准;答辩交易;认罪协商
英文关键词：confession and acceptance of punishment;proof standard for conviction;plea bargaining;confession negotiation
中文摘要：
我国实务界和理论界围绕应否降低认罪认罚案件的证明标准产生了一定争议，而多数试点地区出台的实施细则实际上降低了证明标准。在美国的答辩交易制度下，因法官对有罪答辩“事实基础”的司法审查过于宽松，导致一些没有实施犯罪的被告人受到有罪判决。德国关于认罪协商的立法和判例并未降低定罪证明标准，但实践中有法官基于司法便利忽视对被告人当庭认罪真实性的审查核实。在认罪认罚案件中，检察机关法庭上的举证责任及其证明标准被显著降低，但法院认定被告人有罪的心证门槛不能降低。坚持法定证明标准并不妨碍检察机关就证据较为薄弱的案件与犯罪嫌疑人及其辩护人进行认罪认罚协商，也不意味着法院不可以根据案件特点、证明对象的不同进行灵活把握，更不意味着把法庭审判阶段的证明标准简单地适用于审前阶段。法庭应当一并审查认罪认罚的自愿性、合法性与真实性，确保法定证明标准得到落实。
英文摘要：
Since the implementation of the pilot project on fast track sentencing in criminal procedure and the pilot project on confession and the system of acceptance of punishment in exchange for leniency, there have been disputes over the issue of the proof standard for conviction among legal scholars and professionals. Most experimenting areas have promulgated relevant rules for the implementation of the system that contain a lower standard of proof than what the law requires. In the United States, certain defendants were reportedly convicted of crimes they did not committed, partly because trial judges provided only formalistic review in ascertaining factual basis of guilty pleas. Trial judges in Germany were also criticized by scholars and the German Constitutional Court for neglecting to verify the truthfulness of confessions in court, despite the fact that the law and higher court decisions on confession negotiations never lowered proof standard for conviction, which leads to wrongful convictions. In China, if the defendant makes a confession and shows the willingness to accept punishment, the prosecution's burden of proof in trial would be significantly reduced, but the judge's mental sureness in terms of the threshold of conviction should not be lowered. Adhering to statutory proof standard for conviction does not preclude the prosecution from conducting confession negotiations with the defense in cases with relatively weak evidence. Nor does it deprive the court of its ability to apply the standard with appropriate flexibility in light of particular situations of different cases or proof objects. Neither does it mean to extend trial standards to pre-trial stages rashly or to replace the judicial review and substantive ascertainment of facts by judges in particular cases. The court must simultaneously review the voluntariness, lawfulness and truthfulness of the confession and acceptance of punishment in exchange for leniency before finding the defendant guilty, so as to ensure that the statutory proof standard for conviction is fully implemented.
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