我国检察权的合理配置问题初探

发布时间：2018-05-27 07:22

本文选题：检察权 + 法律监督　；参考：《河南大学》2011年硕士论文

【摘要】：作为一项独立的国家权力,检察权在一国的权力体系中居于重要的地位。对检察权合理进行配置不仅在理论界被重视与研究,在实务界也是被十分关注的课题。检察权往往被理解为检察机关行使的职权,其设置及架构受到一国法律文化、政治制度的影响。检察权是在一国权力体系中拥有独立地位并具有重要作用、由专门的检察机关及检察人员行使以进行公共诉讼和进行法律监督的一项国家权力,其实行的根本目的在于保护公民权益和对公民权益进行损害救济以及维护国家利益。关于检察权性质的观点主要有行政权说、司法权说、双重属性说和法律监督说,其中在国外双重属性说为通说,而在我国法律监督权说为通说。我国宪法将检察机关规定为法律监督机关、承担法律监督职能。法律监督性是检察权的根本属性。检察权的具体内容包含有公诉权、刑事侦查权以及诉讼监督权等,即检察权包含了对刑事案件提起公诉,对负有侦办权的案件进行侦查,对刑事、民事及行政诉讼的诉讼过程进行监督等等。我国检察权制度有较长的历史沿革,人们普遍认为我国古代的御史制度是我国检察制度的前身,秦朝时设立御史台以纠察百官,唐朝时对御史台的权限与职责进行细化,至清末修律进行司法改革,引进西方的检察制度。新中国成立后,对检察制度进行了探索性的建设与发展,目前我国检察制度在不断发展之中,检察权配置也在不断完善。然而分析我国检察权配置的现状,也难以忽视其中存在的一些问题。我国检察权配置的现状可以从以下几方面加以分析:对侦查权检察的现状存在着检察范围的狭窄和监督内容的缺失问题;另外,检察程序设置不仅存在缺陷,而且检察机关检察处理方式设置也有不当;在立案权检察方面,被监督对象仅仅包括公安机关而不包括法院直接立案管辖的情形,监督检察范围不全面,监督手段也非强制性;对审判权的检察监督,其范围狭窄,检察手段不具有强制性,并且在实践中也容易出现一些偏差;对执行权的检察监督,其相应的配套措施设置不足等等。我国检察权配置存在四个方面的缺陷:首先,检察权职能的范围较为狭窄,如检察技术侦查权的缺失,又如对侦查权进行监督检察的过程中检察范围的狭窄、监督内容的缺失,对立案权进行监督的过程中被监督对象以及监督内容范围并不全面;其次,检察权缺乏强制权力保障实施,如在对立案权进行监督的过程中监督措施缺乏强制力,难以保证监督效果。这使得检察职能并没有发挥应有的作用;再次,检察权监督效力的缺失,难以保证检察权的权威性;最后,检察权行使的规则缺乏可操作性,法律规定存在笼统、难以具体执行等等。之所以存在这些问题,分析其原因主要有:我国在立法层面存在漏洞,很多应当予以规制的问题并没有设置相应的法律条文;检察权制度本身发展的属性使然,现阶段我国检察制度仍具有脆弱性;理论界对检察制度及检察权配置在认识上存在分歧,很多问题的认知比较混乱。对检察权进行科学合理的配置,首先需要明确其遵循的基本原则。宪法至上原则、法制原则、依法监督原则、权力制衡原则、检察权独立原则和谦抑性原则等都应当构成检察权配置的基本原则。在坚持这些原则的基础上,对我国检察权配置进行完善可以采取以下一系列措施:扩大检察监督权的权限范围,如适当扩大侦查监督、立案监督、审判监督的权限,使检察权的监督职能更多的发挥作用;增加检察技术侦查权,赋予检察机关技术侦查权,可以针对负责侦办的案件采取监听、监控、密拍等技术侦查措施,提高办案效率,促进检察权职能的顺利实施;增强检察权强制力,增加检察手段,完善检察程序,增强检察机关的强制执行权力,避免由于检察权不具有强制力而出现监督不力的情况;增加检察权的可操作性,针对目前法律条文中较为笼统的规定,制定实施细则,增强检察权可操作性,使检察机关更好履行检察职能;合理配置检察机关内部的职能,着重强化上下级检察机关之间领导与被领导的关系,合理分配检察机关内设机构的权力,检察人员间的权力进行合理分配等等。
[Abstract]:As an independent state power, procuratorial power occupies an important position in the power system of a country. The rational allocation of procuratorial power is not only paid attention to and studied in the theoretical circle, but also a subject of great concern in the practical field. Procuratorial power is often understood as the authority exercised by the procuratorial organ, and its setting and structure are subject to the legal culture of a country. The influence of the political system. The procuratorial power is an independent state and has an important role in the power system of a country. A national power is exercised by the special procuratorial organs and procurators to carry out public litigation and legal supervision. The fundamental purpose of the procuratorial power is to protect the interests of public rights and to damage the rights and interests of citizens as well as the relief of the rights and interests of citizens. In order to safeguard the national interests, the views on the nature of the procuratorial power mainly include the theory of administrative power, the theory of judicial power, the double attribute and the legal supervision, among which the dual attributes of the foreign countries are said as the general theory, and the legal supervision right in our country is the general theory. The constitution of the Constitution provides the procuratorial organs as the legal supervision organ and the legal supervision function. The legal supervision is the inspection. The specific contents of the right of inspection include the right of public prosecution, the right of criminal investigation and the right of supervision of the lawsuit, that is, the procuratorial power includes the prosecution of the criminal cases, the investigation of the cases with the right of investigation, the supervision of the procedure of the criminal, civil and administrative litigation, etc.
The system of procuratorial power in our country has a long history. It is generally believed that the ancient imperial system in our country was the predecessor of the procuratorial system in our country. In the Qin Dynasty, the imperial court was set up to inspect a hundred officials, and the powers and responsibilities of the imperial court were refined in the Tang Dynasty, to the judicial reform of the late Qing Dynasty and the introduction of the Western procuratorial system. After the founding of new China, the Chinese procuratorial system was established. The procuratorial system has carried out exploratory construction and development. At present, the procuratorial system in our country is constantly developing, and the allocation of procuratorial power is constantly improving. However, it is difficult to ignore the existing problems in the analysis of the current situation of the allocation of procuratorial power in our country. The status of the allocation of procuratorial power in China can be analyzed from the following aspects: the inspection right inspection. The present situation of inspection has the limitation of the scope of procuratorial scope and the lack of supervision content; in addition, there are not only defects in the prosecution procedure, but also the improper arrangement of procuratorial organs in the procuratorial organs. In the prosecution of the right of filing case, the object of supervision only includes the public security organs but not the case of the court directly under the jurisdiction of the court, and supervision of the procuratorial model. It is not comprehensive and the means of supervision are not mandatory; the procuratorial supervision of the judicial power is narrow, the procuratorial means is not mandatory, and there are some deviations in practice; the procuratorial supervision of the executive power, the insufficient set of corresponding supporting measures and so on. There are four defects in the configuration of procuratorial power in our country: first, procuratorial power The scope of the function is relatively narrow, such as the lack of procuratorial technology investigation right, as well as the narrowing of the procuratorial scope in the process of supervision and procuratorial investigation, the lack of supervision content, the supervision object and the scope of supervision in the process of supervising the right to file a case and the scope of the supervision content is not comprehensive. In the process of supervising the right of filing a case, the supervision measures are lack of coercion, and it is difficult to guarantee the effect of supervision. This makes the procuratorial function do not play its due role; again, the lack of the supervision effect of the procuratorial power is difficult to guarantee the authority of the procuratorial power; finally, the rules of the exercise of procuratorial power are not operable, the legal provisions are general and difficult to be specific. The main reasons are as follows: there are many reasons for the existence of these problems: there are loopholes in our country in the legislative level, many problems should be regulated and no corresponding legal provisions are set up; the property of the procuratorial system itself is still fragile, and the procuratorial system and procuratorial power in the theoretical circles are matched. There are differences in cognition and many problems are confused.
For the scientific and rational allocation of procuratorial power, first of all, it needs to clear the basic principles that it follows. The principle of constitutional supremacy, the principle of legal system, the principle of supervision by law, the principle of power balance, the principle of independence of procuratorial power and the principle of modesty should all constitute the basic principles of the allocation of procuratorial power. On the basis of adhering to these principles, the allocation of procuratorial power in our country is on the basis of the principle. The following measures can be taken to improve the scope of the authority of the procuratorial supervision, such as the proper expansion of the supervision of the investigation, the supervision of the case, the jurisdiction of the trial supervision, the more function of the supervisory function of the procuratorial power, the increase of the power of investigation of the procuratorial technology, the power of the investigation of the procuratorial organs, and the supervision of the cases responsible for the investigation. In order to improve the efficiency of handling cases and promote the smooth implementation of procuratorial power functions, we should improve the efficiency of handling cases, enhance the force of procuratorial power, increase procuratorial means, improve procuratorial procedure, strengthen the enforcement power of procuratorial organs, avoid the situation of inability to supervise the procuratorial power, and increase the operability of procuratorial power, According to the more general rules in the current legal provisions, the implementation rules will be formulated to enhance the operability of the procuratorial power, to make the procuratorial organs perform the procuratorial function better, to rationally allocate the functions of the procuratorial organs, to strengthen the relationship between the leaders and the leaders between the upper and lower procuratorial organs, and to allocate the power of the procuratorial organs in the procuratorial organs, and the procuratorial people. The rational distribution of the power between the members and so on.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.3

【引证文献】