1672-8505

CN 51-1675/C

“裁量不起诉+社会服务”轻罪治理模式优势、实践偏差与完善路径

Advantages, Practical Deviations, and Improvement Paths of the "Discretionary Non-prosecution + Community Service" Model for Minor Offense Governance

  • 摘要: 因应轻罪治理的实践需要,检察机关依托酌定不起诉制度以及附条件不起诉制度,逐渐探索出了“裁量不起诉+社会服务”轻罪治理模式。该模式有助于化解裁量不起诉“一放了之”的实践困境、具象化行为人人身危险性的判断、修复行为人所侵害的社会关系、避免“罪犯标签”负效应、引导案件审前分流缓解司法人案矛盾。其本质上属于协商性司法,但由于缺乏制度顶层设计,导致在运行中存在以刑罚必要性判断替代构罪判断、社会服务适用泛化以及对话协商的非对等性等实践偏差。应从以下路径完善“裁量不起诉+社会服务”模式的运行机制:首先,检察机关应当树立“罪”“罚”判断分离的司法理念,严格把握行为构罪的事实前提;其次,需要强化社会服务内容与犯罪行为之间的关联性、明确适用范围、完善社会服务考察机制、设置听证程序,以规范其司法适用;最后,要充分尊重行为人服务自愿性、切实保障行为人知情权和落实行为人律师帮助权,以强化行为人权利保障。

     

    Abstract: In response to the practical needs of minor offense governance, prosecutorial authorities have gradually developed a governance model combining discretionary non-prosecution with community service. This model helps address the problem of releasing offenders without subsequent supervision, concretizes the assessment of an offender's personal dangerousness, repairs the social relations harmed by criminal conduct, mitigates the negative effects of criminal stigma, and promotes pretrial diversion to alleviate the tension between caseloads and judicial resources. In essence, the model falls within the scope of negotiated justice. However, due to the lack of top-level institutional design, several practical deviations have emerged in its operation, including substituting the determination of criminal liability with an assessment of the necessity of punishment, the overgeneralized application of community service, and asymmetry in negotiation procedures. This model should be improved along three dimensions. First, prosecutorial authorities should uphold the principle of separating the determination of criminal liability from the imposition of punishment, and strictly adhere to the factual premise for establishing criminality. Second, it is necessary to regulate its application by strengthening the relevance between community service and specific offenses, clarifying the scope of application, improving assessment mechanisms, and establishing formal hearing procedures. Third, full respect should be given to offenders' voluntary participation in community service, while effectively safeguarding their right to be informed and their right to legal counsel, so as to enhance the protection of procedural rights.

     

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