论监察对象与刑法犯罪主体的身份衔接

On the Identity of the Object of Supervision and the Subject of Criminal Law

监察法规定监察机关职务犯罪的调查权,刑法规定职务犯罪的定罪量刑。虽然监察机关的监察对象与刑法犯罪主体作为两个独立的概念并不需要一一对应,公职人员与国家工作人员既非同一也非相互排斥的概念。但是一旦作为监察对象的公职人员涉及到职务犯罪,必然会产生与刑法犯罪主体的街接问题。这些问题的有效解决,应通过法律解释和刑法修正的路径,完善《刑法》相应规定的司法适用规则和立法规范设置。

The Law on supervision stipulates the investigative power of the procuratorial organ for crimes committed by taking advantage of duty, and the criminal law stipulates the conviction and sentencing of crimes committed by taking advantage of duty. Although there is no need for a one-to-one correspondence between the object of supervision and the subject of criminal law as two independent concepts, public officials and state functionaries are neither the same nor mutually exclusive concepts. But once the public officials are involved in duty crime as the object of supervision, there will inevitably be a problem with the subject of criminal law crime street. In order to solve these problems effectively, we should perfect the judicial application rules and legislative norms of the criminal law through the way of legal interpretation and criminal law amendment.