刑事和解协议的性质研究

摘要

刑事和解协议属于效力待定的“公私兼合”的契约形式，被害方和加害方享有缔约权和请求权，行使刑罚权的公权力主体享有提议、审查和监督权。该审查决定程序是刑事和解协议的生效要件，不但具有独立的程序意义，也具有实体法上的意义。对该协议的审查包括了对“自愿性”和“合法性”的审查。%The criminal reconciliation contract is a both-public-and-private contract, and its effect is to be determined. For such a contract, both the offender and the victim have the rights to form it and to ask the judiciary to review it. In fact, the body having the penalty power can propose a motion, then review and supervise how it is done. The reviewing procedure from the judiciary is necessary for an effective contract, and it has both the proce-dural and subtantive values. Besides, the review involves the "voluntary" and the "legitimacy" of the contract.