国家监察法与刑事诉讼法衔接的重大问题研究

Major Issues in the Convergence of the Supervision Law and Criminal Procedure Law

就职务犯罪的调查、追诉与审判而言,国家监察法与刑事诉讼法如铁路警察般"各管一段",两法之间的衔接至为重要。这种衔接在法理上并无矛盾,国家监察法与刑事诉讼法都属于宪法之下的基本法律,具有相同的法律地位与法律效力。两者的衔接具有实体标准与程序建构两个维度,前者要求明确职务违法与职务犯罪的边界,不能以政务处分代替刑事追究,后者则涉及如何对接审判中心主义、刑事诉讼上的证明标准、实施非法证据排除等,并需要实现逮捕与留置措施的对接。

As far as the investigation,prosecution and trial of duty crimes are concerned,the connection between the state supervision law and the criminal procedure law is very important.This connection is not contradictory in the legal principle,for the supervision law and the criminal procedure law both belong to the category of basic laws under the Constitution and have the same legal status and legal effect.The connection between the supervision law and the criminal procedure law has two dimensions:substantive standards and procedural requirements.The former dimension requires a clear boundary between duty crimes and duty violations,and criminal investigation cannot be replaced by administrative sanctions;the latter involves how to accommodate such issues as the trial-centeredness doctrine,proof standards in criminal proceedings,and the implementation of illegal evidence exclusion,and in particular how to bridge the gap between arrests and other detention measures.