论减刑假释暂予监外执行备案审查程序的构建

中央政法委对原县处级以上职务犯罪罪犯减刑、假释、暂予监外执行的，规定了备案审查程序。但对备案审查的性质、标准、方式、效力、救济途径和适用依据等方面规定不明确，学界和实务部门产生了争议。分析后认为，减刑、假释、暂予监外执行的备案审查的性质应为政法机关的内部监督，而不是行政／司法审批；建议备案审查采取合法性审查为主、合理性审查为辅的标准；备案审查的方式，可以对原县处级以上职务犯罪罪犯采取列举式，其他罪犯采取抽举式；备案审查机关的审查结论不应具有改变决定机关减刑、假释、暂予监外执行裁决的效力；对备案审查机关的审查结论不服的，应分别赋予被审查机关和因此受到影响的罪犯提起复查的权利；备案审查的依据应根据《意见》的精神由最高人民法院、最高人民检察院、司法部和公安部联合制定规范法律文件；对同一案件，应由做出裁决的机关向相应的上级机关报请备案审查，而不是相关机关分别备案审查。

On the Recording Review Construction of Commutation,Parole and Temporary Probation

Central Political and Law Commission has built regulations of the recording review process on the o- riginal offenders above the county level crimes commutation, parole and temporary probation. There are controversies between academic institutions and legal practice departments, which were provoked by vague regulations on different aspects of the recording review process, such as its nature, standards, methods, effectiveness, remedial approaches and applicable regulations. After the analysis, it seems to me that the nature of the recording review process on com- mutation, parole, temporary probation should be the internal supervision of law enforcement authorities, rather than administrative or judicial approval. It is recommended to take standards of the recording review process, which are based on legal review with supplementary reasonable review. In terms of approaches of the recording review process, duty criminals above the county level should adopt the enumerated type while other criminals take extraction type. The concluded review of the recording review process should not have the authority to change the decisive effective- ness on commutation, parole and temporary probation. The examined organs and affected criminals should be given the right to appeal when they are dissatisfied about the conclusions of the review authority. The recording review process should be based on the spirits of opinions and legal documents, which were enacted jointly by the Supreme Court, the Supreme People＇ s Procuratorate, the Ministry of Justice and Ministry of Public Security. The decisive au- thorities should submit the same case to the appropriate superior authority, rather than reviewing the relevant authori- ties for the record respectively.