刑事扣押决定权归属的三种模式及其批判

Three Models on the Ownership of the Authorization in Criminal Seizure and its Critics

刑事扣押决定权的归属至少有三种模式:"侦查机关决定模式""检察院决定模式""法院决定模式"。从历史和法治的进程而言,侦查机关决定模式的行政体制弊端明显,检察机关决定扣押导致检察机关存在与公诉权、监督权等角色的冲突。只有将刑事扣押决定权赋予法院,侦查机关负责执行,检察机关归位于公诉,贯彻刑事扣押的决定权与执行权相分离,才能确立法院的审判中心地位,实现刑事扣押程序的正当化。刑事扣押决定权的归属关系到侦查制度的变革,而司法审查"法院决定模式"的配套机制,如控审分离、法官独立、程序法定、违法制裁等制度的建立需要循序渐进。

The ownership of th ＂investigation organ ＂court decision mod e authorization in criminal seizure at least has three models： ecision model the people＇s procuratorate decision model＂ ＂, the qualitative respectively for administrative system, the role conflict of prosecution power, neutral judge. In the course of history and the rule of law, the administrative system of the investigation organ decision model has obvious disadvantages. The people＇s procuratorate decision model conflicts with the power to prosecution. In order to achieve the legitimacy about the ownership of the authorization in criminal seizure, and to establish the whole criminal procedure to be court-centered, the ownership of the authorization in criminal seizure should be vested to the court, to separate the power of decision and implementation in criminal seizure, and ＂the prosecution, the defendant, judge＂ to supervise each other. The ownership of the authorization in criminal seizure has a relationship to the change of investigation system, and the supporting mechanisms of judicial review ＂ court decision model＂ need to establish step by step, separation of prosecution and trial, the judge independence, leg illegal sanctions system, and so on. such as the al procedure,