刑事速裁案件宜实行有限二审制——基于1 055份裁判文书的实证分析

刑事速裁程序首选效率价值，但公正价值的基础性地位不能抛弃。基于被告人认罪认罚的实质，速裁案件的对抗性极小，被告人不服一审判决而上诉的可能性也应该微乎其微。但在实践中，被告人以量刑过重为由上诉或空白上诉后又撤回上诉，随意否认认罪认罚协议，这些程序滥用的行为降低了刑事速裁程序的效率。与此同时，速裁案件一审判决中的错误应当允许通过第二审程序得到纠正。一审终审制观点重视效率价值但忽视公正价值，其理论根据与实践基础不足。两审终审制观点将速裁程序的效率优位限于一审、排除于二审，对上诉权滥用行为予以容忍。速裁案件宜实行有限二审制，在保留检察机关抗诉权的同时，改无因上诉为有因上诉，对上诉理由进行审查，从而避免无实质性错误的案件进入二审，以保持速裁程序的效率优势。

Criminal Fast-track Cases Being Advisable to Adopt Limited Second Instance System: An Empirical Analysis Based on 1,055 Judgments

Since the criminal fast-track adjudication procedure was added to the Criminal Procedure Law in 2018, criminal trials have formed a “Trinity” pattern that differs in ordinary procedure, summary procedure and fast-track adjudication procedure in China, laying a specific path for the reform goal of “accurate trials with complex cases, and fast trials with simple ones”. From the perspective of development and norms, the value orientation of the fast-track trial procedure should be based on “Efficiency Theory Based on Justice”, that is, the efficiency value is the top priority of the criminal fast-track adjudication procedure, but the basic position of the justice value cannot be abandoned.Because the essence of fast-track adjudication procedure is the system of leniency on admission of guilty and acceptance of punishment, the confrontation in fast-track adjudication procedure case rarely happens. Neither does the appeal against first instance sentence from the prosecution, nor from the defense parties. After having investigated 1,055 cases that entered the second trial, we come to the following conclusions: Firstly, the abuse of the appeal right by the defendant deserves our attention. This is mainly manifested in the defendant’s appeal on the ground of excessive sentencing or withdrawing it after blank appeal, in order to achieve the purpose of staying longer in the pre-trial detention centre or reduce the punishment. All these cases reveal the fact that the defendant abused the appeal right, which caused unnecessary waste of judicial resources and reduced the efficiency value of the fast-track adjudication procedure. Secondly, it is justifiable for the court of second instance to amend or cancel the original one and remand it to the original court for retrial in case of errors in the applicable laws, or major facts of the first instance.As for the trial instance system of fast-track adjudication cases, the view of “the first instance is final” is not in line with the requirements of the International Covenant on Civil and Political Rights. Blindly enlarging the binding force of confession of guilt or punishment agreement may lead to wrong cases, and copying foreign procedures of penalty orders will tend to delay the litigation. This view attaches the importance of efficiency but ignores its justice. Neither its rationale nor its practical basis is sufficient. The view of “the second trial is final” strongly amends the major justice defects in the system of “the first trial is final”. However, there are shortcomings as well if we choose to tolerate the abuse of the defendant’s appeal right and to limit the fast-track adjudication procedure to the first instance for the sake of efficiency value. The view of “appeal permission system” claims that the defendant has the appeal right in second instance, but with the condition that the court of second instance has confirmed that he/she has sufficient reasons to do so. It is more reasonable to change the current “right appeal” into “discretionary appeal”. However, this view advocates that the second instance protest of the procurators should also be filtered and examined, which is either difficult to carry out or unnecessary in practice.The system of limited second instance may be applied to fast-track adjudication cases. While retaining the procurators’ protest right in the second instance, the system of non-cause appeals could be changed into cause ones, and a review and filtering mechanism could be set up for the defendant’s appeal, so as to limit the cases without necessary correction to second instances. Here are my recommendations: Firstly, the appeal must be presented in the written form with sufficient reasons, which should focus on the defendant’s self-willingness, authenticity and legitimacy of the confession and punishment, the legitimacy of the original trial procedure, and his/her meritorious behavior after the first instance. Secondly, the scope of the review should be limited to the appeal’s reasons alone. There is no need for a comprehensive review of both the facts and application of law involved in the first-instance trial. Thirdly, the review process should be simple and effective by focusing on the key points. After comparing all the four documents in second instance, i.e. the judgment of first instance, the grounds for appeal, the sentencing proposal and the confession of guilt and punishment, the court has finished the evaluation of the evidence of the first instance and the trial conduct to meet the requirements of the “substantive review”.