律师介入监察调查程序研究

Lawyers' Intervention in Investigation Procedure

《中华人民共和国监察法》的公布,标志着我国确立了新的监察制度,原职务犯罪侦查权转为监察机关的调查权。尽管调查权与侦查权的性质极为相似,但《刑事诉讼法》中关于律师在侦查阶段的权利却无法适用于监察调查程序。律师介入监察调查程序是制约权力、保障人权和维护正当程序的需要。且律师介入监察调查程序有《宪法》和《刑事诉讼法》的一般规定可以援用、有域外成功经验借鉴、有丰富的理论成果支撑。为此,应明确律师在监察调查程序中的会见通信权、调查取证权以及代为行使程序性救济权的权利。

The promulgation of the supervision law of the People's Republic of China marks the establishment of a new supervision system in China. Although the nature of investigation and investigation is very similar, the rights of lawyers in the investigation stage in the criminal procedure law cannot be applied to the supervision and investigation procedure. It is necessary for lawyers to intervene in the process of supervision and investigation to restrict power, protect human rights and maintain due process. Moreover, the general provisions of the constitution and the criminal procedure law can be used as references for lawyers’involvement in the supervisory investigation procedure, as well as successful overseas experience and abundant theoretical achievements. Therefore, it is necessary to clarify the right of lawyers to interview and communicate with each other, to investigate and collect evidence, and to exercise procedural relief on behalf of lawyers.