监察与司法协调衔接的法规范分析

Analysis of the Coordination and Link between the Supervisory Committee and the Judicial Organ from the Perspective of Legal Rules

监察委与司法机关协调衔接的实质,是与国家刑事诉讼程序制度的协调和衔接。职能管辖应当清晰,级别管辖应设基础规范,并案管辖应符合规律,地域管辖宜作出规定并反映案件特点。在监察立案的基础上应建立刑事立案制度,以避免纪法界限模糊,并由此设立部分高强度强制侦查措施启动节点,同时便于与司法程序对接。职务犯罪调查措施的具体实施,应准用我国刑事诉讼法的相关规范,以落实"与刑事审判关于证据的要求和标准相一致"。"通缉"应限于犯罪嫌疑人。留置措施应限于涉嫌犯罪的被调查人,以便适用于非国家工作人员,并实现"双规"改留置的制度进步;检察机关对移送人员应当进行逮捕审查。应按照"任何人不能充当自己案件法官"原理对职务犯罪强制措施制度作进一步改革。全程录音录像应扩大适用范围,随案移送或留存可查;应规定调查人员出庭作证。立法应确认"尊重和保护人权"原则,职务犯罪调查应准许律师进入,同时可参照我国刑事诉讼法作适当限制。案件移送后,应依法全面实施审查起诉,同时应确认检察机关对犯罪调查活动的法律监督,包括立案监督。在纪、法严格区分的二元法律体制中,监察法应按照纪法适度分离及其递进关系作出程序规定,同时内部机构宜适当分离。可将监察机关的刑事部门设置为相对独立的执法主体(包括成为案件移送主体),通过"降低身段",促进监察机关与司法机关的协调衔接。

The coordination and link of the supervisory committee with the judicial organ is in essence the coordination and link with our criminal procedure system. Its jurisdictional function should be clearly defined, basic rules should be laid for jurisdictional level, combined jurisdiction should be determined according to general principles, and territorial jurisdiction should be specified and reflect the features of cases. Criminal case filing system should be established on basis of the booking of cases by the supervisory committee so as to avoid confusion between the disciplinary procedure and the judicial procedure, and thus establishing the time point for initiating some high-severity compulsory investigation measures, and faciliating its link with judicial procedures. The approaches used in the investigation of duty-related crimes should be governed by relative rules of the Criminal Procedure Law so as to realize the compliane with the ＂requirements and standards on evidence in criminal trial＂. Notices for the wanted should only be issued for criminal suspects. Detention should be only imposed on the investigated who is suspected of crimes so that it can be applied to non-government officials and replace the former ＂double designation＂ to achieve systematic pro- gress. The prosecutorial organs should review the necessity of arresting suspects handed over to them. Compulsory measures during investigation of duty-related crimes should be further reformed under the principle of ＂no person should be the judge of his own case＂. Full recording of interrogation should be more extensively used, and the recording should be transferred with the case files or be preserved for consultation. In- vestigation personnel should appear at court for testimony. The legislation should confirm the principle of ＂respect and protection of human rights＂, lawyers should be permitted to participate in the investigative procedure of duty-related crimes, and their rights and duties should be properly limited according to the Criminal Procedure Law. After a case is handed over to the prosecutorial organ, full review for prosecution should be conducted, and the prosecutorial organ should have the right to supervise the investigation of duty-related crimes, including the supervision of case filing. In the dual legal system strictly disdinguishing the discipline and the law, the Supervision Law shall specify procedures according to the suitably seperated and pro- gressive relattonship between the discipline and the law. Functions of the internal departments of the supervisory committee should also be properly divided. The criminal department may be established as a relatively more indeperdant department to serve as law-enfreement subject including cases transfer, Through this ＂self-degradation＂ its cordination and link with the judicial orgun will be promoted.