监察自治理论及其适用界限研究

The Supervisory Autonomy Theory and Its Application Limits

监察委的设置和监察法的通过实施在理论和实践中产生了监察自治理论。这一理论的产生源于腐败犯罪侦查的规律和刑事诉讼程序正当化之间的紧张关系。这一理论的产生和应用面临着刑事诉讼程序的正当化问题、被追诉人权利的保障问题、国家机关之间的关系问题、刑事诉讼中的"调查中心主义"的风险问题。实际上,按照推进反腐败工作法治化、规范化的要求,监察自治理论是有其适用局限的,即仅可以用于证成构建独立的腐败犯罪调查机构和调查力量。据此,监察法和刑事诉讼法在程序规范上属于特别法和一般法的关系;监察自治理论并不适用于处理监察和检察、审判的关系;监察自治理论也不是要塑造一个优越于检察机关、审判机关的独立主体。

The supervisory autonomy theory was produced during the formation of the National Supervisory Commission of the People’s Republic of China and the adoption and implementation of the Supervision law. The theory was developed to resolve the conflicts between respecting the investigation pattern of corruption crimes and maintaining due criminal procedure. In practice, however, the theory has compromised the principle of due criminal procedure, caused difficulties in guaranteeing the rights of the defendant, disrupted relations between state organs and posed the risk of 'investigation-centrism'. In fact, the supervisory autonomy theory should only be used to establish an independent corruption investigation agency and investigative force. According to this, while the Criminal Procedure Law is a general law, the Supervisory Law is merely a special law. It is not applicable to either dealing with the relationship between supervisory, procuratorial and judicial organs, or building an independent organ superior to procuratorial and judicial organs.