职务犯罪监察调查指定管辖研究

On Designated Jurisdiction by Supervisory Organs in Investigating Duty Crimes

职务犯罪监察调查指定管辖在实践中出现了常态化运用现象,尽管提升了打击职务犯罪的效能,但也导致制度成本上升、监刑管辖衔接不畅、权利保障隐忧等问题。如何看待和应对此现象,存在审判管辖统一说与维持现状说的认识分歧。为破解由此出现的监刑管辖冲突问题,学界提出了特殊审判管辖说、异地法官当地审说等方案,实务部门则主要采取了指定下级调查、就地同级诉审模式或者指定下级调查、回转本地诉审模式。这些方案或做法尽管各有其理据和意义,但也均存在理论困局或现实难题。基于价值权衡的考量,在职务犯罪监察指定管辖制度建设方面,应当限制监察指定管辖的适用条件,纳入案件性质、情节轻重和影响大小的考量因素,严格跨地区指定管辖的适用;完善监察指定管辖程序,赋予被调查人及其近亲属对监察调查指定管辖的知情权和异议权;建构“一般回转当地诉审,例外时原地诉审”的监刑管辖衔接模式,强化衔接顺畅性。

The use of designated jurisdiction by supervisory authorities has become a normalization phenomenon in practice.Although it has improved the effectiveness of combating duty crimes,it has also led to issues such as rising system costs,poor connection between supervisory and criminal justice jurisdiction,and hidden concerns about rights protection.How to view and respond to this phenomenon,there are differences in understanding between the theory of unified trial jurisdiction and the theory of maintaining the status quo.In order to solve the resulting conflict between the jurisdiction of supervision and criminal justice,the academic community has proposed plans such as the special trial jurisdiction theory and the local trial theory of judges in different regions.The practical departments mainly adopt the designated lower level investigation,local peer prosecution and trial model,or the designated lower level investigation,and local prosecution and trial model.Although each of these plans or practices has its own rationale and significance,there are also theoretical difficulties or practical difficulties.Based on the consideration of value trade-offs,in the construction of the system for supervisory organs to apply designated jurisdiction,it is necessary:to refine the conditions for designated jurisdiction,incorporate considerations of the nature of the case,the seriousness of the circumstances,and the magnitude of the impact,and strictly enforce the application of designated jurisdiction across regions;to improve the designated jurisdiction procedure and grant the respondent and their close relatives the right to know and dissent from the designated jurisdiction;to construct a connection mode of“generally returning to local litigation and trial,and exceptionally proceeding in situ”to strengthen the smoothness of the connection.