捕诉关系的辩证思考

Dialectical Inspection on the Relation between Arrest and Prosecution

审查批捕和审查起诉究竟应当分离还是合一,这不只是检察机关的内设机构、职权配置之争,更关乎检察制度的发展和法治正义的实现,需要加以认真思考和抉择。捕诉合一确实具有超越于捕诉分离的一些功利性价值,但是更为重要的是,需要通过合理的制度设计,使其获得法理上的正当性基础。对此,应当在实体上强化对逮捕的指引,在程序上,为逮捕设计合议办案与权利救济机制。

The question on whether the examination and approval of arrest and the review of prosecution should be separated or combined is not only a question of internal institution establishment and power distribution of prosecutorial organization,but also a question concerning the development of prosecutorial system and the realization of justice and rule of law.Therefore,it must be deliberately considered and answered.The combination of the examination and approval of arrest and the review for prosecution may indeed have more utilitarian advantages than separation of the two,but it should gain its justification through proper design over the legal system.Substantively,the authorities should strengthen the guidance for the examination and approval of arrest.Procedurally,the authorities should establish a collegial system for examination and approval of arrest,and introduce a remedy mechanism for protection of rights.