中国古代监察制度对新侦诉衔接的启示

The Reference of Supervisory System in Ancient China to the New Investigation and Prosecution Relationship

《监察法》将人民检察院的职务犯罪案件侦查权转隶于监察委员会,改变了传统侦诉关系,引起了监察调查中监察立案和律师介入制度与检察起诉的衔接问题。对此,可以借鉴中国古代监察与司法的关系,继承和发扬中国古代监督与制约并举的监察思想,建立监察调查与检察起诉的程序制约机制。对于涉嫌职务犯罪的案件,应当建立监察立案与刑事立案两套程序,并区分两种程序的启动要件。为保障被调查人的辩护权、发挥律师对监察程序的监督作用,在监察机关第一次采取留置措施后应允许律师介入。

The Supervision Law has transferred the people′s procuratorate′s investigation power of duty crime cases to the supervisory commission,which changed the traditional investigation and prosecution relationship,and raised the problem of the connection between supervisory registration and lawyer′s intervention system and prosecution during supervision and investigation.In this regard,the relationship between supervision and justice in ancient China can be used for reference,and the supervisory thought of simultaneously promoting supervision and restriction can be inherited and carried forward.The procedural restriction mechanism of supervision,investigation and prosecution can be set up.For cases suspected of duty-related crimes,two procedures of supervisory registration and criminal registration should be established as the threshold doctrines.In order to safeguard the right to defense of the investigated and give full play to the supervisory role of lawyers on the supervision procedure,lawyer′s intervention should be allowed after the supervisory commission takes the measure of detention for the first time.