制约与监督辨析——以刑事诉讼为视角

Discrimination between Restriction and Inspection——from the Angle of Criminal Lawsuit

制约与监督起源于不同的政治制度,其共同内涵是控权,但在外延、运行机理等方面存在诸多区别,我国刑事诉讼制度将二者有机结合,符合法治建设进程中的控权要求,但对制约与监督关系的混淆给刑事诉讼中的一些关键概念的理解带来错乱。本文以制约与监督在刑事诉讼中的具体体现为载体,通过对制约与监督的源流考察,对制约与监督的关系进行了对比与辨析,从另外一个角度重新厘定了监督、制约、法律监督、诉讼监督的关系,及其之于刑事诉讼的理论意义和实践意义,并提出了诉讼制约与诉讼监督如同法律监督的两翼,应当在完善诉讼制约的同时不断强化诉讼监督,并将检察机关的追诉与诉讼监督职能作适当分离等观点。

Restriction and Inspection originated from different political systems,their common connotation is the power of control,but they differsignificantly in extension and mechanism.The criminal lawsuit in China combines both,which passes muster during the coures of lawsuit construction,meanwhile,there exists the confusion of the relation of restriction and inspection,which leads to the misunderstanding of some critical conceptions in criminal lawsuit.This paper examines the every aspect of restriction and inspection,compares and analyses the relation between restriction and inspection with the embodiment of restriction and inspection in criminal lawsuit cases.The relation between inspection,restriction,legal inspection and lawsuit inspection is combed from a novel angle. Lawsuit inspection and and lawsuit restriction are like the wings of law inspection,they should be perfected and enforced simultaneously.The prosecute and lawsuit inspection of the inspection institutions should be splited moderately.