侦查权的困境与进路——以赋予侦查权司法属性为基点

Difficulties and Future of Investigation Power——Based on the Jurisdiction Attribute Given to the Investigation Power

当代刑事诉讼的发展体现着诉讼重心前移的趋势,公诉机关不起诉裁量权的扩大应用便是明证之一。对于同为审前程序的侦查阶段,是应时而变还是固守本色,无疑是当今诉讼法学界的重大课题。在实务中,侦查机关及时终结刑事诉讼程序,减少进入审判程序的案件数量,事实上行使着消极刑事裁决权这一具有司法属性的权力。而侦查权的基本权属实为行政权,此时论证、赋予侦查权的司法属性是解决这一形似"悖论"的前提。

The development of present criminal action has revealed the trend of shifting its focus ahead. It＇ s a clear proof that the extended application of the discretionary right is not prosecuted by public prosecution organizations. When it comes to the investigation period of the pre- examination procedure, changing as the occasion demands or clinging to traditions is undoubtedly considered as a major subject for the present academic circle of procedure law. Actually, the investigation organs perform in practice their negative criminal judgment power with jurisdiction attribute when they terminate the criminal procedure and reduce the quantity of cases in trial procedure. Now that the investigation power rests with the executive power, arguments and the jurisdiction attribute given to the investigation power become a premise to settle the paradox.