以人性为基础的侦查监督制度的反思与重构

Reflection and Reconstruction of Supervision System in Investigation Basing on Human Nature

分析了西方以人性恶为预设和中国以性善论为基础的两种法律制度。认为,监督制度是基于对人性不信任的理念而产生的,但由于对"人性恶"认识不够,我国的侦查监督制度设计存在着严重的弊端,监督权难以阻止侦查权对人权的侵犯。因此,要对人性进行理性思考,借鉴西方国家的人性恶假设,对我国的侦查监督制度进行重构:以塑造合理的侦查结构为重点,设立相对中立的专门监督机关为辅助,通过对权力的合理配置,以权力制约权力,加强权利保障,以权利约束权力。

Two kinds of legal systems are analyzed, the western system that regards evil as human nature and China＇ s system that is on the basis of the theory of good nature. It is considered that, the production of supervisory system is based on the idea of distrusting human nature; but because there is no enough understanding on evil of human nature, there are serious drawbacks in the design of Chinese supervision system in investigation, and it is difficult for supervisory authority to stop the infringement of human rights by investigation right. To reconstruct the supervision system in investigation of China, rational thinking should be carried on and the hypothesis of evil of human nature should be used for reference; Regarding establishing the rational investigation structure as the focal point, special supervising organ of relative neutrality should be set up as assist, through the rational disposition of power to realize the restriction of power with power, and the right guarantee should be strengthened to restrain power with the right.