量刑程序改革的模式选择
陈瑞华量刑程序改革的模式选择
Models of Sentencing Procedural Reform
期刊名称：《法学研究》
期刊年份：
作者：陈瑞华
单位：北京大学法学院
中文关键词：量刑程序改革;集中量刑模式;交错量刑模式;独立量刑模式
英文关键词：sentencing procedural reform;centralized sentencing model;flexible alternating sentencing model;independent sentencing model
中文摘要：
确立适当的量刑程序模式，使得定罪程序与量刑程序的关系得到合理的协调，这是量刑程序改革的首要课题。最高法院新近确立的改革方案，尽管在“认罪审理程序”中具有可行性，但在简易程序和普通程序中却很难得到适用，甚至可能面临较大的理论争议和现实风险。通过基层法院的改革探索，一种建立在检察官批量出庭基础上的“集中量刑模式”，逐渐在简易程序中出现；对于被告人不认罪的案件，一种新的“独立量刑模式”在司法实践中逐渐浮出水面；那种适用于“认罪审理程序”中的“交错量刑模式”，也存在着进一步改进和完善的空间。对于这些自生自发的改革经验，改革者应正视其存在的合理性，评估其试验的效果，从而使其在促进新制度的形成方面发挥更大的作用。
英文摘要：
The primary subject of the sentencing procedural reform is to establish an appropriate sentencing procedural model to coordinate the relationship between conviction and sentencing proceedings reasonably. Although the newly established reform program by the Supreme People’s Court can be feasibly implemented in the guilty plea cases, it would meet some difficulties in both summary cases and general procedures and even face some theoretical disputes and real risks.Through the experimental exploration of the grassroots courts, a model named “centralized sentencing model”, basing on the mass-appearance of prosecutors, has gradually taken shape in summary proceedings. In this model, after the indictment which confirms the defendant has constituted a crime, the court hears a number of cases prosecuted by prosecutors in a continuous sentencing hearing and gives their sentencing decisions respectively.In cases where the defendant pleas not guilty, the viewpoints for the establishment of an “independent sentencing procedure” are came out and supported by some law experts and the judiciary. This model means that the court trial shall be divided into two relatively independent stages, that is, conviction and the sentencing hearing. The court should firstly settle down whether the accused has constituted a crime or not through investigation and court debates. After the declaration of conviction, the court will organize a special sentencing proceeding. By listening to the views of both defense lawyers and prosecutors and reviewing the statutory and discretionary sentencing circumstances, the court then makes the final decisions on the sentencing issue of the accused.In cases where the defendant voluntarily pleas guilty, the “flexible alternating sentencing model” still leaves some spaces for further improvement. So the sentencing procedural reform is far from maturity. The policy-makers of the reform should not be complacent and conservative. For these self-engendered reform experiences, the reformers should not blindly adopt the attitude of rejection, but instead should face up to the reasonableness of their existence and assess their effectiveness, so as to make them play a greater role in the formation of a new system.
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