监察机关调查阶段律师介入:现状、问题与路径

Lawyers′Involvement in the Investigation Stage of Supervisory Organs:Current Situation,Problems and Approaches

监察调查规定存在的问题主要包括监察调查程序的相对封闭有损程序正义、被调查人法律权利与义务失衡以及被调查人供述的意思自治得不到保证。监察机关调查阶段律师介入具有必要性和可行性。这既是保障被调查人权益的需要,又是保证监察调查公平公正、促进监察程序与刑事诉讼程序衔接的必然选择。国家推进国家治理体系和治理能力现代化、刑事辩护全覆盖、深化监察体制改革的经验及其他国家和地区的立法分别为监察调查程序律师介入提供了政治、制度、实践、经验基础。关于监察机关调查阶段律师介入的理论方案,公职律师介入、值班律师介入及建立特殊的值班律师制度均存在不足以保障被调查人权益等缺陷。因此,应当确立自行委托律师优先原则,并对案件作出分级,在平等赋予管辖异议权的同时差异化赋予被调查人会见权、律师在场权以及确定介入时间。此外,既要建立起相应的权利救济机制,也要对权利行使的界限进行规定。在高效反腐与人权保障的动态平衡下,使国家监察体系在法治化道路上有序运行。

The main problems in supervision and investigation regulations include the highly closed supervision and investigation procedures,which damage procedural justice,the imbalance between the legal rights and obligations of the investigated and the autonomy of the will of the investigated.It is necessary and feasible for lawyers to intervene in the investigation stage of supervisory organs.This is not only the need to protect the rights and interests of the people under investigation,but also the inevitable choice to ensure the fairness and justice of supervision and investigation and promote the connection between supervision and criminal procedure.The country′s experience in promoting the modernization of governance system and governance capacity,the full coverage of criminal defense,deepening the reform of supervision system and the legislation of other countries and regions have respectively provided the political,institutional,practical and experiential basis for the intervention of lawyers in supervision and investigation procedures.As for the theoretical scheme of lawyers′involvement in the investigation stage of supervisory organs,the involvement of public lawyers,the involvement of duty lawyers and the establishment of a special duty lawyer system are not enough to protect the rights and interests of the people under investigation.Therefore,the principle of giving priority to lawyers entrusted by oneself should be established and cases should be graded.In addition to the equal right to object to the jurisdiction,the right to meet with the investigated person,the right to be present with the lawyer,and the right to determine the time of intervention are given differently.In addition,it is necessary not only to establish the corresponding right relief mechanism,but also to stipulate the limits of the exercise of the right.Under the dynamic balance between effective anti-corruption and human rights protection,the national supervision system will operate in an orderly way on the road of rule of law.