2018年认罪认罚从宽制度正式施行以来，其高适用率、量刑建议高采纳率、刑事审判低上诉率（即“两高一低”）成为诉讼新常态；认罪认罚适用全部案件类型、量刑建议覆盖全部公诉案件、“明显不当”量刑建议排非适用“双全一非”影响着合作诉讼、协商司法的成效。我国《刑事诉讼法》第201条赋予法官认为量刑建议“明显不当”时不受限制的量刑权，用以评价量刑建议对裁判的实际约束程度。“明显不当”最早出现于1991年的《人民检察院刑事检察工作细则》，后为历次刑诉规则、抗诉指导、量刑规范所收录，作为判断刑罚畸轻畸重的标准。本文选用的789例样本案件裁判量刑建议“明显不当”包含量刑上限低于拟宣告刑的显著轻缓建议和量刑下限高于拟宣告刑的严厉畸重建议，表现为违反罪责刑相适应原则、严重背离一般司法认知、造成同案犯或类案量刑不均衡、差异化采信人身危险情节、缓刑等特定因素影响量刑公正。“明显不当”指向“确有不当”，或归结为求刑失当，或表现为量刑错误，或归咎于一审司法的整体偏离。检、法两家量刑分歧反映控辩审三方刑罚权益的再分配，重点是保障辩护权、调节求刑权与独立审判权间寻求一种动态平衡，应然采纳确定刑建议的诉讼法规定和高采纳率的审判实践压缩着法院裁量限度，以“明显不当”评价量刑建议严重不合理的标准成为法官裁量对抗“一般应当采纳”、独立自主量刑的最佳出路。

然而，“明显不当”使用失范，不仅无法有效切割量刑建议与宣告刑的法定联系，评定过程显露的认定规则缺位、法条适用障碍、监督制约乏力、排除程序瑕疵还动摇了不采纳的正当化依据，即明显不当认定失误引发不采纳量刑建议的错误，结果必然指向量刑的不公正。其中暴露出的问题既有观念、制度的深层次桎梏，也有不采纳程序、法条理解与适用的操作失误等方面的问题。本文主要通过对裁判的实证研究，从应然层面追因溯果，为明显不当量刑建议判定、处理和程序适用找寻通行标准、法理依据和论证理由，从实然层面归纳检法争议焦点和判断标准，减少因不采纳建议说理不清晰、论证不充分、法条引用模糊、判断标准随意导致的“明显不当”认定混乱及量刑分歧，并提出缓解检法冲突的优化路径。补充更为精细的量刑索引并构建统一“明显不当”认证规则是加强量刑建议规范化建设的治本之举，完善不采纳决策程序、加强量刑说理是检法沟通、消除量刑冲突的有效方法，构筑科学的司法业务管理体系是消解“明显不当”生成的预防机制。本文通过对“明显不当”梳理，链接精准量刑建议的合法、合理、合意，促进检法量刑配合有据、制约有力、监督有效，让复杂量刑公开化、庭审量刑实质化、刑罚裁量可视化，改变以往估堆量刑轻易脱离量刑建议的“一手包办”、“庭外操作”，力求为“明显不当”标准化认定贡献智慧。

The system of leniency for guilty admission and punishment acceptance was formally established in 2018, high confession punishment rates, high sentencing recommendation adoption rates and low appeal rates in criminal trial have become the new normal of litigation. The application of confession punishment to all types of cases, sentencing recommendations covering all public prosecution cases, and obviously inappropriate exclusion of the application of sentencing recommendations affect the main effect of cooperative litigation and judicial negotiation. Article 201 of the Criminal Procedure Law gives the judge unlimited sentencing power when he considers the sentencing proposal “obviously inappropriate”, in order to evaluate the actual degree of restriction of the sentencing proposal on the judge. “obviously inappropriate” first appeared in the detailed rules of criminal prosecution in 1991, and then it was included in the rules of criminal prosecution, protest guidance and sentencing norms, as the standard to judge the terateness of penalty. The sentencing recommendations for the 789 sample cases were “obviously inappropriate”, including the recommendation that the sentencing upper limit be significantly lower than the sentence to be pronounced, and the recommendation that the sentencing lower limit be severely higher than the sentence to be pronounced. For example, it violates the principle of adapting crime to punishment, deviates from general judicial cognition seriously, causes imbalanced sentencing for accomplices or similar cases, different acceptance of personal danger circumstances, suspension of sentence and other specific factors affecting the justice of sentencing. The “obviously inappropriate” is embodied in “definitely improper”, or it can be attributed to the impropriety of seeking punishment, or it can be attributed to the error of sentencing, or it can be attributed to the overall deviation of the first instance justice. The difference between prosecution and sentencing reflects the redistribution of criminal rights and interests among the three parties. The key point is to safeguard the right to defense, adjust the right to seek punishment and seek a dynamic balance between the independent trial power. While the procedural law and the high adoption rates trial practice have reduced the discretion of the court. It is the best way for judges to evaluate the sentencing proposal with “obviously inappropriate” standard, which is seriously unreasonable.

The usage of “obviously inappropriate” lose specification, not only can not effectively cut the legal connection between sentencing recommendations and declaratory punishment, the absence of identification rules in the process of evaluation, obstacles to the application of articles, weak supervision and restriction, the elimination of procedural defects,but it also shakes the non-adoption of the justification basis. That is to say, the mistake of “obviously inappropriate” identification leads to the mistake of not adopting sentencing suggestions, which inevitably leads to the injustice of sentencing. The problems exposed are not only the deep-seated shackles of concepts and systems, but also the operational errors of not adopting procedures and understanding, and application of laws. Based on the empirical study of “quantitative and qualitative”, judgement, the authorities to trace the cause and effect from ideal aspects, and find the common standard, legal basis and argumentation reasons for the judgment, treatment and procedure application of the “obviously inappropriate” sentencing suggestions. In order to reduce the confusion of “obviously inappropriate” identification and sentencing differences caused by not adopting suggestions, unclear reasoning, insufficient argumentation, vague legal references and arbitrary judgment standards, the author puts forward the optimization path to alleviate the conflict between procuratorial organs and judicial organs from practical level. It is a radical move to strengthen the standardization of sentencing suggestions to supplement a more detailed sentencing index and build a unified “obviously inappropriate” certification rule. It is an effective way to improve the non adoption of decision-making procedures, strengthen sentencing reasoning, and eliminate sentencing conflicts. It is a preventive mechanism to build a scientific judicial business management system. This paper combs the “obviously inappropriate” and links the legality, rationality and agreement of the precise sentencing suggestions, so as to promote the cooperation, restriction and supervision of the procuratorial and judicial sentencing, so as to make the complex sentencing open, the court sentencing substantive and the sentencing discretion visual, and change the “one-stop” and “out of court operation” of the previous sentencing suggestions, so as to strive to contribute wisdom to the standardized identification of “obviously inappropriate”.