从分权制衡原则审视羁押权之归属

An Examination of the Criminal Detention Power from the Perspective of the Principle of Separation of Powers

权力分立制衡原则是现代法治国刑事司法权力运作的基础,对于受指控人的基本权利保障具有重大意义。就国际公约与欧、美先进国家的法治经验论,纠问式侦查构造已日渐式微,检察官无羁押权为各国立法之通例。如果检察官已经行使侦查、公诉职权,就不宜再在侦查程序中担当预审法官,也不应当享有羁押决定权。我国未来的刑事司法改革应当温和而渐进地进行,在保障受指控人的听审权与救济权利的前提下保留检察官羁押权,引入事后审查制由中立法院对羁押进行事后复审。

The principle of separation of powers is the foundation of contemporary countries and is very important to defendant＇ s rights in criminal procedure. International conventions and the experience of Western countries show that the inquisitorial system of criminal investigation is in decline and it becomes a general rule that public prosecutors no long exercise the power of detention. Since public prosecutors are already playing the role of investigator and prosecutor, it is not appropriate for them to be a judge in pretrial review. China should reform its system relating to the power of detention in a gradual, step-by-step way. Under the pre-condition of fully safeguarding defendant＇ s rights of hearing and appealing, the prosecutor＇ s power of pretrial detention could be retained and a system be introduced whereby the judge has the power to review the detention carried out by the prosecutor.