《监察法》与《刑事诉讼法》衔接探析

Analysis about Cohesion of the Supervision Law and the Criminal Procedure Law

《中华人民共和国监察法》与《中华人民共和国刑事诉讼法》作为由全国人大制定的两部重要法律,在国家法治反腐中发挥着举足轻重的作用。2018年10月十三届全国人大常委会第六次会议表决通过了《关于修改〈刑事诉讼法〉的决定》,实现了与《监察法》的衔接。"法法衔接"体现了"区别侦查、对接公诉、服务审判"的立法思路。首先,《监察法》中的调查权与《刑事诉讼法》规定的侦查权在权力的本源归属、运行机理和追求目标上存在明显不同,不能单用《刑事诉讼法》的视角去审视"法法衔接"问题。其次,监察程序和公诉程序是相互独立而又有交集的关系,监察程序应当有序导入到公诉程序之中,这需要从刑事立案过渡、两类措施转化以及退回补充调查三个主要方面予以实现。最后,司法的终局裁定性决定了监察权应当尊重和保障审判权,树立司法反腐的权威性,积极适应"以审判为中心"的诉讼制度改革要求,实现监察反腐与司法反腐之间的有效对接。

The Supervision Law and the Criminal Procedure Law which were legislated by the National People’s Congress play an important role in the National rule of Law Combating Corruption. The sixth session of the thirteen Standing Committee of the National People ’s Congress Standing Committee voted to adopt the Decision on Amending the Criminal Procedure Law( hereinafter referred to as the New Criminal Procedure Law) on October 26 2018. The Decision realized the cohesion of the Supervision Law and Criminal Procedure Law. The cohesion of two laws shows the legislative ideas of distinguishing investigation,docking public prosecution and serving trial. Realization of legal cohesion should answer some question well. First of all,the Investigation Power in the Supervision Law is different from the Detection power in the Criminal Procedure Law fundamentally in origin of ownership,operation mechanism and the pursuit of the goals. It is undesirable to solve the problems of legal cohesion in the view of the Criminal Procedure Law.Secondly,on one hand,the supervision procedures and the public prosecution procedures are independent;on the other hand,they are associated. The supervision procedures should be introduced into the public prosecution procedures in an orderly way which needs to be achieved from three main aspects: the transition of criminal filing,the transformation of two types of measures and the return of supplementary investigation. Finally,the judicial finality resolve the Supervision Power which should respect and protect Judicial Power,establish the authority of judicial anticorruption. Meanwhile actively adapt to the trial-centered requirements of the reform of the litigation system,to achieve effective monitoring of anti-corruption and judicial anti-corruption docking.