职务犯罪调查程序中的公职律师行使法律帮助权之探讨

Probe into the Public Lawyer's Right of Legal Aid in Duty Crime Investigation Procedure

2019年3月《监察法》颁布并生效后,原隶属检察机关的"两反"部门职务犯罪侦查权转隶至监察委员会。监察委调查程序的启动涉及职务违法与职务犯罪的不同类型,移送审查提起公诉仅能以职务犯罪调查为前提。但不论基于何种调查程序,均存在适用留置措施以限制被调查人人身自由的情形。基于《监察法》适用的背景,原《刑事诉讼法》赋予律师在职务犯罪侦查过程中的帮助权适用条件不复存在。在职务犯罪调查阶段,立法应赋予律师对被调查人有限的法律帮助权;在监察委将职务犯罪嫌疑人移送检察机关提起公诉阶段,律师应立基于辩护人职责行使辩护权,保障犯罪嫌疑人、被告人相关刑事诉讼权利,同时须明确检察机关审查起诉后退回监察委补充调查与自行侦查之间的界限。

After the Supervision Law of the People’s Republic of China was promulgated and came into effect in March 2018,the investigation power of duty crimes which originally belonged to the anticorruption and bribery bureau and anti-malfeasance and infringement bureau of the procuratorial was transferred to the supervisory commission. Investigation procedures are related to different types of duty violation and duty crimes and the review of prosecution can only be based on the investigation of dutyrelated crimes. However,no matter what investigation procedure is based on,there would be lien measures to restrict the personal freedom of the investigated. Based on the applicable backgrounds of the Supervision Law,the conditions according to the previous Criminal Procedure Law granting lawyers right in the investigation of duty crimes no longer existed. In the stage of duty crimes investigation,the legislation should give lawyers limited legal aid to help the investigated. In the stage of reviewing prosecution by the organ,lawyers should make full use of the right based on the duties of defenders to protect the relevant criminal litigation rights of suspects and defendants. At the same time,they should make clear of the boundary between supplementary investigation by the supervisory commission and selfinvestigation by the organ.