建构行刑衔接中的行政检察监督机制

Constructing Administrative Procuratorial Supervision Mechanism in the Connection of Administrative Law and Criminal Law

我国传统行刑衔接机制存在涵盖范围狭窄、衔接方式单一、衔接信息平台无法满足“刑行”双向衔接功能需求等问题。受到宪法“分工合作”原则的限制,承担“行刑”衔接检察监督职能的刑事检察部门不能直接对行政违法行为进行检察监督。党的十八届四中全会决议提出建构行政违法检察监督机制的目的在于推动检察职能从刑事领域延伸到行政违法领域,推动我国行刑一体化机制的完善。但行政违法行为检察监督职能的内涵一直不明确,应将行刑衔接改革与行政违法行为检察监督职能结合起来,推动行政检察部门聚焦于“行刑衔接”的制度空间,克服现行“行刑衔接”机制的局限性,监督在刑事犯罪中发现的行政违法行为,借助行政检察职能全面修复行刑之间的制度漏洞。具体而言,行刑衔接中存在五种行政检察监督部模式,其监督重点事项也各有不同。

In the resolution of the Fourth Plenary Session of the 18th CPC Central Committee,the Communist Party of China(CPC) put forward the judicial reform task of " procuratorial supervision of administrative violations".Since it overlaps with the reform of the national supervision system,the exploration of the reform of procuratorial supervision of administrative violations has been suspended.In the Opinions on Strengthening the Legal Supervision of Procuratorial Organs in the New Era issued by the Central Committee of the Communist Party of China in June 2021,the reform task of " procuratorial supervision of administrative violations" was put forward again.In order to implement the Opinions,the Supreme People's Procuratorate has promoted a new round of reform of procuratorial supervision over administrative illegal behaviors.However,the nature of procuratorial supervision over administrative violations is still vague.There are some problems in the coordination between administrative law and criminal law in China,such as narrow scope,single coordination mode,and the coordination information platform inconsistent with the requirements of the two-way linkage function in administrative law and criminal law.Being constrained by the principle of specialization in the Constitution,the criminal prosecution department,which undertakes the function of procuratorial supervision in the coordination between administrative law and criminal law,cannot directly supervise administrative violations.The resolution of the Fourth Plenary Session of the 18th CPC Central Committee proposes to construct a procuratorial supervision mechanism for administrative violations,aiming to promote the procuratorial organs to extend their functions from the criminal field to the administrative violations field and improve the integrated mechanism of the coordination between administrative law and criminal law in China.Therefore,the article points out that the reform of coordination between administrative law and criminal law should be linked with the reform of procuratorial supervision of administrative violations,and the administrative procuratorial supervision mechanism in coordination between administrative law and criminal law should be constructed.The administrative procuratorial department should focus on the system space of connection between administrative law and criminal law,overcome the limitations of the current " administrative-criminal" mechanism,supervise the administrative illegal acts found in criminal crimes,and comprehensively repair the system loopholes caused by such acts.This article focuses on five modes of administrative procuratorial supervision.The first supervision mode is the "either-or" mode in administrative law and criminal law.The second mode supervises the inclusive offence.The third mode is that when the procuratorate refuses to issue an arrest order,the criminal should still be subject to administrative punishment.The fourth mode is both model,that is,the actor should not only bear criminal responsibility,but also bear administrative responsibility.The last mode is " related sanctions",which means,after the principal offender is investigated for criminal responsibility,the procuratorial organ also needs to supervise whether the administrative violations related to the crime are also punished.