论中国检察权的属性与定位

发布时间：2018-02-24 18:06

本文关键词： 检察权行政司法法律监督　出处：《山东大学》2012年硕士论文　论文类型：学位论文

【摘要】：自检察权诞生以来,其性质一直是学界争论许久又莫衷一是的话题。随着中国司法体制改革的逐步深入推进,对中国检察权属性与定位的讨论也逐渐成为了一个理论热点问题。中国检察权的制度设计与西方传统检察权有诸多不同,因而招致了不少学者的质疑。由于我国宪法将检察权作为与行政权、审判权平行并列的一项独立国家权力,因此,中国检察制度的建构,不仅关系到司法与诉讼领域本身,而且是关乎整个中国宪政体系重构的重大问题。因此有必要对中国检察权的属性与定位作理性探讨,以为中国检察制度未来的发展确定走向。本文中,笔者首先对检察权产生和起源的历史进行了考察,从而了解检察权产生的内在动因和历史意义,以探明其本来面貌。现代检察权起源于法国,其制度目的是在于改革纠问式诉讼程序,制约法官权力,在被其他国家移植后又被赋予了“法律守护人”、“公益代表人”等新的角色,其职责逐渐走出公诉领域,向着监督公权、守护法治等更为广阔的领域拓展。通过对大陆法系、英美法系、苏联俄罗斯等域外检察模式的全方位比较与考察,笔者认为,各国检察权虽然在属性定位、职权配置等方面各有不同,但其都具有监督制约国家权力的共通属性,检察机关在国家权力体系中的独立性日益加强,监督权能逐步扩大,已成为世界各国检察权发展的共同趋势。而在对中国检察权历史演变过程的考察中可以看出,新中国检察制度借鉴吸收了西方大陆法系、苏联社会主义法制、中国古代监察制度传统等多重经验,从其建立开始就以查处干部违法乱纪为重点,以法律监督为其核心职能,在制度设计与定位上与当代检察权在本质上是共通的。对一项国家权力的认识离不开对其自身属性的分析,目前对中国检察权性质认识较为普遍的有行政权说、司法权说、双重属性说与法律监督权说四种。笔者对上述四种学说进行了逐一评析后认为中国检察权应定性为兼具司法属性的特殊行政权,行政性是其本质属性。但对中国检察权的定位不能仅仅依据国家权力属性的划分标准,还必须充分考量该权力在国家宪政体制中的法理正当性与其现实合理性,中国检察权在监督制约公权力运行、保障法律统一正确实施、保护社会公共利益与公民权利等方面体现出巨大的功能和价值。其每一项权能都履行着对国家权力监督制约的职责,是检察机关整体监督职能的具体外化。检察权应当成为一项独立的国家权力,我国现行的人民检察制度建构是符合我国国情的正确选择。
[Abstract]:Since the birth of procuratorial power, the nature of procuratorial power has been a subject of debate and disagreement in academic circles for a long time. With the deepening of the reform of China's judicial system, The discussion on the nature and orientation of procuratorial power in China has gradually become a hot issue in theory. The institutional design of procuratorial power in China is different from that of the traditional procuratorial power in the West. As the procuratorial power is regarded as an independent state power parallel to the administrative power and the judicial power, therefore, the construction of China's procuratorial system is not only related to the field of judicature and litigation itself. Therefore, it is necessary to make a rational discussion on the attribute and orientation of the procuratorial power in China in order to determine the direction of the future development of the procuratorial system in China. In this paper, the author first investigates the history of the emergence and origin of procuratorial power, so as to understand the intrinsic motivation and historical significance of the emergence of procuratorial power, in order to find out its original appearance. The modern procuratorial power originates from France. The purpose of its system is to reform the inquisitorial procedure, restrict the power of judges, and be endowed with new roles such as "guardian of law" and "representative of public good" after being transplanted by other countries, whose duties gradually go out of the field of public prosecution and turn to supervision of public power. Based on the omni-directional comparison and investigation of the procuratorial modes of the continental law system, the common law system, the Soviet Union and Russia, the author believes that the prosecutorial power of various countries is located in the attribute, The allocation of functions and powers are different, but they all have the common attribute of supervising and restricting the state power. The procuratorial organs' independence in the system of state power is strengthened day by day, and the supervisory power can be expanded step by step. It has become a common trend in the development of procuratorial power all over the world, and from the investigation of the historical evolution of procuratorial power in China, it can be seen that the procuratorial system of New China has absorbed the western continental law system and the socialist legal system of the Soviet Union. From the beginning of its establishment, China's ancient supervisory system tradition focused on investigating and punishing cadres for violating the law and discipline, and took legal supervision as its core function. In terms of system design and orientation, the system design and positioning are in common with contemporary procuratorial power in essence. The understanding of a state power can not be separated from the analysis of its own attributes. At present, there are the theories of executive power, judicial power, and judicial power, which are relatively common in understanding the nature of procuratorial power in China. The author analyzes the four theories one by one and concludes that the procuratorial power in China should be characterized as a special administrative power with both judicial attributes. The administrative nature is its essential attribute. However, the orientation of the procuratorial power in China should not only be based on the criteria of the division of the attributes of the state power, but also take full account of the legitimacy of the power in the national constitutional system and its realistic reasonableness. The procuratorial power in China is supervising and restricting the operation of public power and ensuring the unified and correct implementation of the law. The protection of social and public interests and the rights of citizens have great functions and values. Each of its powers performs its duty of supervising and restricting state power. The procuratorial power should become an independent state power, and the construction of the current people's procuratorial system is the correct choice in accordance with the national conditions of our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.3

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