刘甜甜

(中国法学会法治研究所，北京 100081)

【摘 要】共犯对质对于认定认罪认罚与不认罪认罚被告人相互矛盾的供述具有重要作用，但在我国 却受到了不应有的忽视。认罪认罚共犯的身份本质上为被告人，无论是并案还是分案审理，只要当其与 不认罪认罚被告人在“认事实”上产生实质性差异时，不认罪认罚被告人便可以申请与认罪认罚被告人 进行“一对一”的对质。为了倒逼对质程序的应用，应当明确未经质证的共犯供述不得作为证据，确立 只有相互补强的共犯口供不得定案的证据规则。但当共犯主张作证豁免权以及不得自证其罪特权时，可 以不展开对质，以保障被告人的利益。

【关键词】共同犯罪;部分认罪认罚;对质程序;虚假印证;证据规则 【中图分类号】D915.13

【文献标识码】A

【文章编号】1674-1226(2023)03-0278-11

Study on the accomplice’s confession and the confrontation issue. Liu Tiantian. The Law Institute of China Law Society, Beijing, 100081.

【Abstract】The confrontation of accomplices plays an important role in identifying the inconsistent confessions made by the defendant who pleads guilty and the defendant who pleads not guilty, but it has been unduly neglected in practice. The role of the accomplice who enters a plea is essentially the defendant, no matter in a joint trial or a separate trial. As long as certain facts admitted by such accomplice is substantially different from the defendant who pleas not guilty, the defendant can apply for a "one-to-one" confrontation with such accomplice. In order to carry out the confrontation procedure, it should be made clear that the accomplice’s confession that has not been cross-examined is inadmissible as evidence, and that the defendant should not be convicted merely by the accomplice’s mutually corroborated confessions. However, when the accomplice pleads his privilege against compelled testimony and his privilege against self-incrimination, confrontation may not be initiated in order to protect the interests of the defendant.

【Key Words】Joint crime; Partial plea; Confrontation procedure; False corroboration; Rules of evidence