“异地用检”规制论

On the Regulation of“Off-site Application of Prosecutor”

“异地用检”多被认为是“检察一体”的产物,但事实上并非完全如此。在实行“检察一体”的国家,检察官履行职责也有严格的地域限制。我国检察权尚未实现全国统一行使,地方化色彩较为浓厚,且检察官具有准司法官属性,这决定了“异地用检”应受到一定限制。一是明确适用范围应是新型、集团性和专业性较强的案件;二是明确“异地用检”的决定主体,同时也应是办案主体,防止“越俎代庖”,架空下级检察机关的领导权;三是明确由经验丰富的本院检察官担任团队负责人;四是注意调用人员与案件的匹配;五是尽量避免临时性调用检力。

“Off-site application of prosecutor”has been seen as a by-product of“prosecutorial integration”.However,the view might not meet the reality.In countries where there is“prosecutorial integration”,prosecutors are also subject to strict geographical restrictions in the performance of their duties.In China,the procuratorial power has not yet been exercised uniformly and with strong localised impact,and prosecutors have the attribute of quasi-judicial officials,which determines that“off-site application of prosecutor”should be subject to certain restrictions.The first is to clarify that the scope of application should be new-typed and highly specialised cases;the second is to clarify the decision-making body of“off-site prosecutor”,in the meanwhile,it should also be the main authority handling the case,to prevent“overstepping”and evading the leadership of lower-level procuratorial organs;the third is to make it clear that the experienced prosecutor of the procuratorate shall be the director;the fourth is to pay attention to the matching of the prosecutor and the case;the fifth is trying to avoid temporary application of procuratorial power.