我国监察侦查的学理展开

《中华人民共和国宪法修正案》(以下简称《宪法修正案》)的通过、《中华人民共和国监察法》(以下简称《监察法》)的制定、《中华人民共和国刑法诉讼法》(以下简称《刑事诉讼法》)的修改,标志着我国反腐法治化的进一步发展,将检察机关对“贪污贿赂犯罪和国家工作人员的渎职犯罪”案件的侦查权剥离给监察委员会,由监察机关按照《监察法》的内在逻辑对这些犯罪行使“调查权”,实质是将监察权引入刑事诉讼,监察机关对这些职务犯罪的调查权实质是“侦查权”。按照刑事侦查一般原理,以及我国刑事司法全面法治化的推进逻辑,特别是刑事诉讼宪法化的内在要求,《刑事诉讼法》与《监察法》未来发展需要对监察机关“调查权”一并进行调整,要围绕“侦查权”双向落位重塑“调查权”,要做到授权与控权同时并举,进一步规范立案机制,完善侦查原则,优化侦查构造,规范侦查行为。监察侦查权的法治化,既伴随着再次修宪中检察权的适度调适,也伴随着《刑事诉讼法》与《监察法》相应一并修改时检察机关侦查监督权的适度拓展。

Research on the Academic Principles of Supervisory Detection in China

The amendment for the Constitution has been passed,the Law of Supervision has been enacted and the Law of Criminal Procedure has been modified.The important sector in the preliminary legalization of our anti-corruption practice lies in the transfer of the detection power on“corruption and bribe crimes and malpractice crimes of the national staff”by the procuratorial organ to the supervisory committee.In this way,the supervisory organ is entitled to exercise its“power of investigation”for these crimes according to the inherent logic of the Law of Supervision,which,in essence,is to introduce the power of supervision into criminal proceedings as the power of investigation held by the supervisory organ for these duty-related crimes is virtually the“power of detection”.According to the general principles of criminal detection and the logic for comprehensively promoting the legalization of criminal justice in China,particularly the essential requirement for the constitutionalization of criminal proceedings,the future development of the law of criminal procedure and the law of supervision shall be realized with the adjustment of the“power of investigation”held by the investigatory organ.To achieve that development,the“power of investigation”shall be remodeled in a bi-directional positioning manner around the“power of detection”,the authorization of power shall be accompanied by the control of the power,the mechanism for filing a case shall be standardized,the detection principles shall be modified,the detection structure shall be improved,and the detection practices shall be specified.The legalization of the supervisory power and the detection power is realized with the moderate adjustment of the procuratorial power in this constitutional amendment and with the moderate expansion of the detection power and supervisory power held by the procuratorial organ when the law of criminal procedure and the law of supervision were modified together with the constitution.