监察调查、刑讯逼供与刑法应对

Reaction of the Criminal Law to Extorting Confession by Torture in Supervisory Investigation

《监察法》将职务犯罪案件的刑事侦查程序变革为监察调查程序后,监察人员的刑讯逼供行为可否适用于主体限定为司法工作人员的刑讯逼供罪引发争议。一方面,对职务违法犯罪的监察调查与刑事侦查具有高度同质性,其中的刑讯逼供若不加以规制,既不能充分保障被调查人的基本人权,也有违法律平等适用原则,还不能有效控制冤假错案的产生,具有严重社会危害性。另一方面,仅依靠《监察法》难以规制监察调查中的刑讯行为,而通过法律解释将监察人员解释为司法工作人员,将其刑讯逼供行为纳入刑讯逼供罪的适用范围,则与罪刑法定原则冲突甚大。法律解释路径无助于化解这一冲突,宜通过立法程序修正现行《刑法》的刑讯逼供罪:将监察人员与司法工作人员并列为刑讯逼供罪的犯罪主体,同时对监察调查程序予以适当切割,仅将监察工作人员针对涉嫌职务犯罪被调查人的刑讯逼供行为纳入该罪。

After the“Supervision Law”changed the criminal investigation procedure of duty crime cases into Supervisory investigation procedure,whether the behavior of extorting a confession by torture from the supervisors can be defined as the crime of extorting a confession by torture from judicial staff is a controversy.On the one hand,the Supervisory investigation of duty crimes is highly homogenous to criminal investigation procedure.Without the regulation of criminal law on the extorting a confession by torture,it can not fully protect the basic human rights of the investigated,nor can it effectively control the occurrence of wrongful convictions,and there are still some problems such as violating the principle of equal application of law.On the other hand,it is difficult to prevent extorting a confession by torture by the Supervision Law only.However,to directly integrate the extorting a confession by torture in supervisory investigation into the scope of the crime by extensive interpretation of subjects is in great conflict with the principle of a legally prescribed punishment for a specified crime.The path of legal interpretation will not help to resolve this conflict,and it is advised to amend the extorting a confession by torture in the current criminal law through legislative procedures:the supervisors and the judicial staff shall be included as the subjects of the extorting a confession by torture,and the supervisory investigation procedures shall be appropriately separated,only the supervisors’behavior of extorting a confession by torture against a person suspected of being involved in a duty crime is included in the crime.