论对监察机关的司法监督与制约

On Judicial Supervision and Restriction of Supervisory Organs

2021年出台的《监察法实施条例》首次提出监察机关和监察人员应依法接受司法监督。在此之前,《监察法》已明确监察机关应与检察机关、审判机关互相配合、互相制约,这确立了司法机关在对监察机关的监督与制约中的重要地位,但在现行立法中,对监察机关的司法监督与制约内涵不明且实践中监督制约力度较弱,导致司法机关无法有效发挥其对监察机关外部“监督者”的作用。进一步深化国家监察体制改革,应将监察权运行的法治化作为着力点,建立有效的监督制约机制,在明确司法监督与制约内涵的基础上充分激发司法机关对监察机关监督的活力:首先,应厘清监察监督与司法机关独立行使职权的界限;其次,应完善检察机关提前介入机制;再次,应注重对监察机关非罪化处置的监督与制约;最后,应建立监察录音录像调取—移送制度。

In 2021, the Regulations for the Implementation of the Supervision Law of People’s Republic of China(PRC)(hereinafter referred to as the Regulations for the Implementation of the Supervision Law)put forward for the first time that supervisory organs and supervisory personnel should accept judicial supervision according to law. Before that, the Supervision Law of People’s Republic of China(PRC)(hereinafter referred to as the Supervision Law)had made it clear that supervisory organs should cooperate and restrict each other with procuratorial organs and judicial organs, which established the important position of judicial organs in supervising and restricting supervisory organs. However, in the current legislation, the connotation of judicial supervision and restriction to supervisory organs is unclear and the supervision and restriction in practice is weak, which leads to the inability of judicial organs to effectively play their role as external "supervisors" of supervisory organs. To further deepen the reform of the state supervision system, we should focus on the legalization of the operation of supervision power, establish an effective supervision and restriction mechanism, and fully stimulate the vitality of judicial supervision over the supervision organs on the basis of clarifying the connotation of judicial supervision and restriction: first, we should clarify the boundary between supervision and judicial organs’ independent exercise of functions and powers;Secondly, we should improve the early intervention mechanism of procuratorial organs;Thirdly, we should pay attention to the supervision and restriction of the decriminalization disposal of supervisory organs;Finally, we should establish a system of monitoring audio and video retrieval and transfer.