论我国行政权与检察权的权力配置及相互关系

发布时间：2018-06-02 23:05

本文选题：行政权 + 检察权　；参考：《山东大学》2011年硕士论文

【摘要】：在整个国家法律的调整机制中,我国检察权既涉及监督刑事诉讼过程中诉讼行为的合法性,又涉及监督民事、行政诉讼过程中诉讼行为的合法性；既监督执法,又监督守法,因此法律监督就是检察机关全部权能的体现,就是检察权的全部内容,检察权就是法律监督权。要切实地把行政权与检察权关系问题探讨清楚,就要从我国宪政体制内行政权和检察权如何被配置的实证入手,以权力在法治过程中的地位和作用为基础,以权力运行中承载的国家职能为依据。将权力配置模式作为讨论行政权与检察权的关系讨论搭建框架,从事实中确定用来明确二者关系的坐标,最终得出结论——行政权与检察权这两种权力在我国宪政体制内相互独立而各居其位、各司其职；相互关联而分工配合、相辅相成。但是目前由于多种原因,我国对行政权和检察权的配置存在严重的不均衡情形。一方面是行政权权力设置任意、缺乏整合的问题突出；另一方面,我国检察权的法律监督地位名不符实,受到行政权力的挤压。对此应当寻求宪政意义上的方法予以认识和解决。本文共分三个部分：第一章：明晰检察权的性质。检察权起源于西方,传统意义上的检察权是有着浓厚的西方宪政特征的。西方国家对检察机关的定位从最初的国王利益代理人,逐渐转变为近现代的公共利益维护者；检察权也在这种需求的背景下容纳了相应典型性的权能内容。我国的检察权具有不同于西方国家的特色之处,这与我国的的古代历史、近现代发展历程不无相关。在我国,检察权力的性质始终存在争议,有诸多观点问世。在此本文试图寻找到一种梳理检察权基本范畴的方法论,通过对检察权内涵的明确,为后文检察权与行政权配置模式的分析和关系的探讨奠定基础。第二章：多渠道分析我国行政权与检察权的配置模式。以我国宪政体制内行政权和检察权如何被配置的实证入手,以权力在法治过程中的地位和作用为基础,以权力运行中承载的国家职能为依据,以之作为讨论行政权与检察权的关系的框架。同时运用多种渠道考察二者静态的初衷和动态的动向,撇开暧昧的迷雾,从事实中确定用来明确二者关系的坐标,为探讨我国行政权和检察权关系做出铺垫。第三章：阐释行政权与检察权的关系。在我国,对行政权与检察权的关系一直以来都有争论,无论是理论界还是实务界,无论宪政学科抑或诉讼、司法制度领域,从不同的立场和思维出发提出各自认识和见解。从前述我国权力配置状况来看,从权力的依据、行使主体、内容到对权力的监督与救济,行政权与检察权在诸多方面都存在明显的差异。通过进一步的归纳和对比,便可从中获取行政权与检察权是否存在归属关系的结论。同时,同为社会主义法治建设的一部分,二者之间有着很多共通和衔接之处。
[Abstract]:In the adjustment mechanism of the whole national law, the procuratorial power of our country involves not only the supervision of the legality of the litigation in the criminal procedure, but also the legality of the civil and administrative litigation, as well as the supervision of the enforcement of the law and the observance of the law. Therefore, the legal supervision is the embodiment of the procuratorial organ's total power, the whole content of the procuratorial power, and the procuratorial power is the legal supervisory power. In order to discuss the relationship between executive power and procuratorial power, we should start with the demonstration of how the executive power and procuratorial power are allocated in the constitutional system of our country, and base on the position and function of power in the process of ruling by law. It is based on the state functions carried in the operation of power. The mode of power allocation is used as a framework for discussing the relationship between executive power and procuratorial power, and the coordinates used to clarify the relationship between the two are determined from the facts. Finally, it is concluded that executive power and procuratorial power are independent of each other in the constitutional system of our country, and they perform their respective duties, and they are interrelated and cooperate with each other and complement each other. However, due to various reasons, there is a serious imbalance in the allocation of administrative power and procuratorial power in China. On the one hand, the establishment of administrative power is arbitrary and the lack of integration is prominent; on the other hand, the legal supervision status of procuratorial power in our country is not worthy of name and is squeezed by administrative power. We should find a way to understand and solve this problem in the sense of constitutionalism. This paper is divided into three parts: Chapter one: clarify the nature of procuratorial power. Prosecutorial power originates from the west, and the traditional prosecutorial power has strong constitutional characteristics in the west. The position of the procuratorial organ in the western countries has gradually changed from the original interest agent of the king to the public interest defender in modern times; the procuratorial power has also contained the corresponding typical power content under the background of this kind of demand. The procuratorial power of our country is different from that of the western countries, which is related to the ancient history of our country and the development of modern times. In our country, the nature of procuratorial power has always been controversial, there are many viewpoints. This paper tries to find a methodology to sort out the basic category of procuratorial power and lay a foundation for the analysis and discussion of the relationship between procuratorial power and administrative power by clarifying the connotation of procuratorial power. Chapter II: multi-channel analysis of administrative power and procuratorial power allocation model. Based on the demonstration of how the administrative power and the procuratorial power are allocated in the constitutional system of our country, and based on the position and function of the power in the process of ruling by law, and on the basis of the state function carried in the operation of the power, This paper discusses the relationship between executive power and procuratorial power. At the same time, the static original intention and dynamic trend of the two are investigated through various channels, the ambiguous fog is set aside, and the coordinates used to clarify the relationship between the two are determined from the facts, thus paving the way for the discussion of the relationship between administrative power and procuratorial power in our country. Chapter three: explain the relationship between executive power and procuratorial power. In our country, the relationship between executive power and procuratorial power has always been debated, no matter in theory or practice, no matter constitutional discipline or litigation, judicial system field, from different standpoint and thinking put forward their own understanding and opinion. From the above situation of power allocation in our country, there are obvious differences between administrative power and procuratorial power in many aspects, from the basis of power, the exercise of subject, the content to the supervision and relief of power. Through further induction and comparison, we can get the conclusion that there is a relationship between executive power and procuratorial power. At the same time, as part of the construction of socialist rule of law, there are a lot of similarities and convergence between the two.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.3;D922.1

【引证文献】