预防职务犯罪中检察约谈制度研究
发布时间：2018-12-10 14:02
【摘要】：检察机关预防职务犯罪工作是适应党和国家反腐败战略转变而新拓展的一项非诉业务工作,检察约谈制度作为一种新的预防职务犯罪方法已被我国各地检察机关运行多年,取得了较大进展,在预防职务犯罪工作中发挥了积极的作用,但总体上仍然处于摸索阶段,在法律依据和操作规范层面都缺乏明确的规定。作为一种新的工作方法,检察约谈的立法层级低、条款相对原则而缺乏可操作性、缺乏明确的法律定位等等问题影响了检察约谈双方的权益,有待解决。对于如何开展检察约谈工作,在思想认识上还存在误区,在职能定位上还存在偏差,在实际操作上还不够规范,从而影响了工作成效的有效发挥。鉴于此,本文参照国内其他行业的约谈实务经验,采用实证研究的方法,深入分析检察约谈在现行预防职务犯罪中的实践困境,通过对检察约谈中的法律关系、运行结构的探讨,重新构建了我国预防职务犯罪中的检察约谈制度。 本文通过运用哈贝马斯的沟通理论分析研究,发现检察约谈为纵向非平等主体间的单向沟通。检察约谈是检察机关在非诉领域的法律监督方式,是现有预防职务犯罪方法的有力补充,具有沟通交流、信启、传递、释法说理功能。但检察约谈在现行预防职务犯罪中遇到法律定位问题、程序外部支持不够等问题。 本文通过对检察约谈的主体、关系人、内容、权利与义务的分析研究,和检察约谈在实践中启动、处置结果的效果分析,对检察约谈开启、实施、结果处置程序进行了设置,从而对重新构建我国预防职务犯罪中的检察约谈制度提出了检察约谈应纳入预防职务犯罪工作条例、国家公职人员可申请约谈及滥兴约谈程序之处罚、约谈内容应修正、检察机关约谈结果处理之裁量权应明确的建议。以及约谈时应同步录音录像并形成书面记录、约谈人员应具有专业性及遵守回避原则规定、规范约谈程序等建议。
[Abstract]:The prevention of job-related crimes by procuratorial organs is a new non-litigation work adapted to the transformation of the anti-corruption strategy of the Party and the state. As a new method of preventing job-related crimes, the procuratorial interview system has been operated by procuratorial organs in various parts of our country for many years. Great progress has been made and has played an active role in the prevention of job-related crimes, but on the whole it is still in a groping stage and lacks clear provisions in terms of legal basis and operational norms. As a new working method, the low legislative level of procuratorial interview, the lack of maneuverability of terms relative to principle, the lack of clear legal position and so on have affected the rights and interests of both sides of procuratorial interview, which need to be solved. As to how to carry out procuratorial interview work, there are still some misunderstandings in ideology, deviation in function orientation and lack of standardization in actual operation, which affects the effective exertion of work effect. In view of this, this paper, referring to the practical experience of other domestic industries and adopting the method of empirical research, deeply analyzes the practical difficulties of procuratorial interviews in the current prevention of job-related crimes, and through the legal relations in procuratorial interviews, The discussion of operation structure reconstructs the procuratorial interview system in preventing duty crime in our country. Through the analysis of Habermas' communication theory, this paper finds that procuratorial interview is a unidirectional communication between vertically unequal subjects. Procuratorial interview is a legal supervision method of procuratorial organs in the field of non-prosecution, which is a powerful supplement to the existing methods of preventing crimes committed by duty, and has the functions of communication, transmission and interpretation. However, the procuratorial interview encountered the problems of legal orientation and insufficient external support in the current prevention of job-related crimes. Based on the analysis and study of the subject, relation, content, rights and obligations of the procuratorial interview, and the analysis of the effect of the procuratorial interview in practice and the result of disposal, the author sets up the procedure of opening, implementing and disposing the result of the procuratorial interview. In order to reconstruct the procuratorial interview system in the prevention of job-related crimes in our country, this paper puts forward that the procuratorial interview should be included in the working regulations of the prevention of job-related crimes, and the state public officials may apply for punishment of interviewing and overdoing the interview procedure, and the contents of the interview should be amended. The discretion of the procuratorial organ to deal with the result of interview shall be made clear. During the interview, the audio and video recording should be synchronized and written record should be formed. The interviewer should be professional, abide by the rules of avoidance principle, standardize the interview procedure and so on.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D917;D926.3
本文编号：2370702
[Abstract]:The prevention of job-related crimes by procuratorial organs is a new non-litigation work adapted to the transformation of the anti-corruption strategy of the Party and the state. As a new method of preventing job-related crimes, the procuratorial interview system has been operated by procuratorial organs in various parts of our country for many years. Great progress has been made and has played an active role in the prevention of job-related crimes, but on the whole it is still in a groping stage and lacks clear provisions in terms of legal basis and operational norms. As a new working method, the low legislative level of procuratorial interview, the lack of maneuverability of terms relative to principle, the lack of clear legal position and so on have affected the rights and interests of both sides of procuratorial interview, which need to be solved. As to how to carry out procuratorial interview work, there are still some misunderstandings in ideology, deviation in function orientation and lack of standardization in actual operation, which affects the effective exertion of work effect. In view of this, this paper, referring to the practical experience of other domestic industries and adopting the method of empirical research, deeply analyzes the practical difficulties of procuratorial interviews in the current prevention of job-related crimes, and through the legal relations in procuratorial interviews, The discussion of operation structure reconstructs the procuratorial interview system in preventing duty crime in our country. Through the analysis of Habermas' communication theory, this paper finds that procuratorial interview is a unidirectional communication between vertically unequal subjects. Procuratorial interview is a legal supervision method of procuratorial organs in the field of non-prosecution, which is a powerful supplement to the existing methods of preventing crimes committed by duty, and has the functions of communication, transmission and interpretation. However, the procuratorial interview encountered the problems of legal orientation and insufficient external support in the current prevention of job-related crimes. Based on the analysis and study of the subject, relation, content, rights and obligations of the procuratorial interview, and the analysis of the effect of the procuratorial interview in practice and the result of disposal, the author sets up the procedure of opening, implementing and disposing the result of the procuratorial interview. In order to reconstruct the procuratorial interview system in the prevention of job-related crimes in our country, this paper puts forward that the procuratorial interview should be included in the working regulations of the prevention of job-related crimes, and the state public officials may apply for punishment of interviewing and overdoing the interview procedure, and the contents of the interview should be amended. The discretion of the procuratorial organ to deal with the result of interview shall be made clear. During the interview, the audio and video recording should be synchronized and written record should be formed. The interviewer should be professional, abide by the rules of avoidance principle, standardize the interview procedure and so on.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D917;D926.3
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