贿赂犯罪案件的查办需求与程序供给——兼论监察调查程序的改革思路

Bribery Crime Investigation’s Handling Case Demand and Procedure Supply:Comments on the Reform Ideas of the Investigation of the Supervision Committee

贿赂犯罪案件查办严重依赖口供,办案模式无法"由证到供"转型,且被调查人妨碍诉讼的风险极高、后果极其严重,需要相对较长时间控制被调查人。然而,刑事诉讼程序存在立案条件高、侦查手段有限、讯问程序限制多、妨碍诉讼预防难等程序供给不足的问题。实践中出现了初查询问被调查人获取口供的"证人模式"、与纪委"联合办案模式"以及"指定监视居住模式"。这些模式虽然满足了贿赂犯罪的查办需求,但正当性有所欠缺,可能诱发滥权。事实上,犯罪控制理论、程序分化理论,以及打击腐败的客观形势都决定了应当建立对贿赂犯罪的特殊调查程序。监察法通过留置制度、违法犯罪调查一元化、禁止律师介入,满足了办案需要,但在程序设计上溢出了办案需要,改革应当针对贿赂犯罪设置特殊程序的需要为度,包括限制留置适用、规范讯问时间、完善强制措施以及技术侦查措施、保障有限的律师帮助权。

The investigation of bribery crime relies heavily on confession,from prove to confession almost impossible,else,criminal suspects interfere with the proceedings extremely high risk、heavy consequences,The investigation organ needs a long time to control the personal freedom of suspects. However,there are some procedure undersupply problems in the current criminal procedure,such as high filing conditions,limited investigative means,limited interrogation procedures,and hindering the difficulty of litigation prevention. Based on the realistic needs of combating corruption crimes,the " witness model",the " joint case handling mode" with the Commission for Discipline Inspection,and the designated surveillance residential mode have emerged in the initial query asked respondents to obtain confessions in practice. Although these models can meet the demand of the bribery crime investigation of handing needs,but the legitimacy is insufficient,which may lead to abuse of power. In fact,the objective situation of combating corruption and the theory of procedure differentiation of criminal proceedings corresponding to the characteristics of crime determine that special criminal proceedings should be established for bribery crimes. The reform of the supervisory committee is the effort to establish this special procedure. In the future,the exercise of lien should be standardized so as to meet the need of investigating and dealing with bribery crimes. Supervision law of the People’s Republic of China has satisfied the need for handling cases by means of the detain system,unified investigation of crimes and crimes,and prohibited lawyers. However,the need for handling cases was overflowed in the design of the procedures. The reform should address the need for special procedures for bribery crimes,including restrictions on detain,standardizing interrogation time,improving enforcement measures and technical investigation measures,and establishing mandatory measures to limit personal freedom,and guaranteeing limited right to counsel.