阜阳市检察机关适用刑事和解情况调查报告

发布时间：2019-06-17 19:10

【摘要】：传统的刑事案件办理方式以确定刑事责任和刑罚为核心,在发挥打击犯罪、维护社会秩序作用的同时,也面临诸多难题：惩罚严厉,办案机关和监狱负担沉重；关押场所交叉感染,犯罪人改造效果不容乐观；被害人因犯罪行为所遭受的物质损失难以得到及时赔偿,心灵创伤难以抚慰；案件处理后,原有矛盾难以化解,当事人双方间社会关系难以恢复等。在此背景下,兼顾被害人合法权益保障、犯罪人回归社会及矛盾化解和社会关系修复功能的刑事和解制度,逐渐引起人们的关注,日益成为理论界和实务界研究探讨的热点。在我国立法上尚未正式建立刑事和解制度的情况下,司法实务部门先行一步,积极探索刑事和解办案新方式。其中,各级检察机关走在前列,不仅开展实务操作,而且还出台相应的规范性文件,有的还建立了相关的配套机制。安徽省阜阳市检察机关于2008年初在全省率先开展了刑事和解试点工作,并制定了《阜阳市检察机关关于在审查起诉中适用刑事和解的指导意见》。至2010年6月,该市两级检察机关共适用刑事和解办理刑事案件242件254人,适用的案件类型主要为交通肇事和故意伤害(轻伤)。从总体上看,适用的案件数量还非常有限,每年的增幅较小。实践中,绝大部分案件的双方当事人是在第三方主持调解下达成和解的,其中,又以由检察机关主持调解占多数。对达成和解的案件,检察机关的处理方式主要为退回公安机关并建议撤销案件、不起诉以及起诉并向法院提出量刑建议三种。阜阳市检察机关在刑事和解试点中,严格把握刑事和解的适用范围和适用条件,规范适用程序,并建立了跟踪回访制度,取得了积极的效果。实践表明,刑事和解在化解社会矛盾,促进社会关系恢复、保障被害人权利,使被害人及时得到较为充分的赔偿、促进加害人回归社会,有效预防再犯罪以及总体上提高了诉讼效率,减少了诉讼成本等方面的确具有十分积极的效果。同时,也暴露出检察机关刑事和解实践中存在的一些具有普遍性的问题,如确定刑事和解适用范围的标准较模糊,适用范围过于狭窄、检察机关主持调解的做法不当、退回公安机关作撤销案件处理的结案方式有违法律规定、对检察机关适用刑事和解的监督缺位等。为进一步完善刑事和解制度,笔者提出一些建议和构想：主张刑事和解的适用条件应当包括案件事实清楚、双方当事人自愿、犯罪嫌疑人认罪且悔过、被害人真心谅解等四个方面；对于刑事和解案件的范围设定,从案件轻重范围和案件种类范围两个角度进行分析,不主张笼统地以轻罪、重罪来界定刑事和解的案件范围,而支持采取严格规定与司法裁量相结合的方式,由立法首先对刑事和解案件的范围作出原则性的规定,再用排除的方法列举不允许适用刑事和解的案件,其他案件由司法机关根据具体案情斟酌决定是否适用刑事和解；在由谁主持调解的问题上,认为由人民调解组织主持调解是当前我国刑事和解实践的合适选择,建议通过构建检调对接机制,提高和解成功率,弥补司法资源的不足,减轻检察机关的办案压力；建议进一步完善不起诉制度,构建刑事和解与量刑建议对接机制,规范刑事和解案件的结案方式；对于刑事和解监督机制,建议从内部和外部两个方面着手,通过加强事前、事后监督、引入人民监督员制度以及实行和解不起诉案件公开审查等方式,加强对检察机关刑事和解工作的监督,保障刑事和解依法公正适用。
[Abstract]:The traditional way of handling criminal cases is to determine the criminal responsibility and the penalty as the core, and at the same time to play the role of fighting crime and maintaining social order, it also faces many difficulties: the punishment of severe punishment, the heavy burden of the case-handling organ and the prison, the cross-infection in the place of detention, The effect of the reform of the criminal is not optimistic; the loss of the material suffered by the victim is difficult to be compensated in time, and the trauma of the mind is hard to pacify; after the case is processed, the original contradiction is difficult to resolve, and the social relations between the parties are difficult to recover. In this context, the criminal and reconciliation system, which takes into account the protection of the legitimate rights and interests of the victims, the return of the offender to the society and the conflict resolution and the restoration of the social relations, has gradually aroused the attention of the people, and has become the hot spot in the research of the theoretical and practical circles. In the absence of a formal system of criminal reconciliation in our country's legislation, the judicial practice department should take one step, and actively explore the new way of criminal reconciliation. Among them, the procuratorial organs at all levels are in the forefront, not only do the substantive operation, but also the corresponding normative documents, and some relevant supporting mechanisms are also established. In the beginning of 2008, the procuratorial organ of Fuyang city of Anhui province took the lead in the pilot work of criminal reconciliation in the province, and formulated the guidance of the procuratorial organ of Fuyang City on the application of criminal reconciliation in the prosecution. >. By June 2010, the two-level public prosecution service of the city applied criminal reconciliation to handle 242 criminal cases, including 242 criminal cases, and the applicable case type was mainly caused by traffic accident and intentional injury (minor injury As a whole, the number of cases to be applied is also very limited and the annual increase is higher In practice, the two parties in most of the cases have reached a settlement under the auspices of the third party, and the mediation by the procuratorial organ is much more Number. In case of a settlement, the handling method of the procuratorial organ is mainly to return to the public security organ and to recommend the withdrawal of the case, the non-prosecution and the prosecution and the recommendation to the court for sentencing. In the trial of criminal reconciliation, the procuratorial organs of Fuyang City, in strict control of the scope of application and application of the criminal reconciliation, the application of the procedure and the establishment of a follow-up system of follow-up, have made a positive effect. The practice shows that the criminal reconciliation is in the process of resolving social contradictions, promoting the restoration of social relations, safeguarding the rights of the victims, making the victims receive adequate compensation in time, promoting the return of the offender to the society, effectively preventing the re-crime and overall improving the action effect The rate, the reduction of the cost of the litigation, etc. do have a very positive effect At the same time, there are some problems in the practice of the criminal and reconciliation of the procuratorial organs, such as the standard of determining the scope of application of the criminal and reconciliation, the scope of application is too narrow, and the practice of the prosecution of the mediation by the procuratorial organ does not When returning to the public security organ, the method of closing the case is contrary to the law, and the supervision of the application of the criminal reconciliation by the procuratorial organ is absent. In order to further improve the system of criminal reconciliation, the author put forward some suggestions and ideas: the application conditions of the proposition of criminal reconciliation should include the facts of the case, the parties' voluntary contributions, the confession of the criminal suspect, the repentance, the true understanding of the victim, etc. The scope of the case of criminal and reconciliation is set in two angles, ranging from the scope of the case and the scope of the case. It is not recommended that the scope of the case of criminal reconciliation be defined in general terms of a misdemeanor, a felony, and a party that supports the combination of strict rules with the amount of judicial discretion. The legislation first provides a principle of principle for the scope of the case of criminal reconciliation, and uses the exclusion method to enumerate cases in which the application of criminal reconciliation is not allowed, and the other cases are determined by the judiciary, as appropriate, on the merits of the case and whether it is applicable to criminal reconciliation; who is under the auspices of the mediation On the other hand, it is suggested that the mediation by the people's mediation organizations is the right choice of the current criminal and reconciliation practice in our country, and it is suggested that the system of the public prosecution should be constructed, the success rate of the settlement can be improved, the shortage of the judicial resources should be made up, and the handling pressure of the procuratorial organs should be reduced; it is suggested to further improve the non-prosecution system. To establish a joint mechanism for criminal reconciliation and sentencing, and to regulate the way of closing the case of criminal and reconciliation; for the supervision mechanism of criminal and reconciliation, it is proposed to proceed from both internal and external aspects, through the strengthening of advance and ex-post To strengthen the supervision of the criminal and reconciliation work of the procuratorial organs, to guarantee the justice and justice of the criminal reconciliation according to law, in such a way as to introduce the system of the people's supervisor and the public examination of the case of non-prosecution of the settlement
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.32;D925.2

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