论检察一体
发布时间：2018-08-03 16:39
【摘要】：国内学者对检察一体的理解相当混乱甚至存在严重错误。目前对检察一体的定义主要有三类即单一要素说、二要素说和三要素说,但无论是单一要素说还是二要素说抑或是三要素说都存在不同程度的片面性且部分理解与检察一体的原貌相差甚远。检察一体这一概念应包含四个要素即对外的整体独立,对内的纵向科层式建构/上命下从、横向协作和检察官独立。长期以来,检察一体作为检察制度中的一个重要概念被学者们从不同的视角进行解读,但几乎都是以静态的方式对其进行理解从而将检察一体固化为失去活力的僵化物。检察一体本身是一个极具弹性和活力的范畴。它随国家权力运行方式的变化而变化,随国家政策特别是国家刑事政策目标的变迁而变迁,随社会文化的转变而转变。国家权力运行的集中与民主,国家刑事政策目标的打击与预防,社会文化的权威与自由都作为可变量深刻地影响着检察一体的面相。我国法律明确了检察机关与法院、公安机关相互独立的关系,三者具有平等的价值位阶;另外,宪法明确规定了检察机关在行使职权时不受任何党派、团体、机关及个人的干涉。因此,与实行“三权分立”国家所实行的检察制度相比较,我国检察机关在理论上具有“超强”的独立性。但另一方面,由于检察机关受制于公安机关以及法院。地方党委、政府控制着检察机关人事、财政的现实导致了检察机关在实践中的“超弱”独立性。为此,必须对现有的检警关系、检察机关与各级党委、行政的关系进行改革。在检察一体的内部纵向关系上,由于历史与现实的原因,我国检察机关内部表现为上命下从有余而检察官独立性不够。故而,必须为上命下从设定实体和程序的界限。在检察一体之内部横向协作方面,我国检察协作责任追究机制乏力使协作机制的建立流于形式,协作考核制度欠缺影响协作积极性的发挥,经费保障的不力制约了协作机制的建立和完善,地方保护主义困扰横向协作机制的正常运行。因此,欲实现检察机关之间的协调与和谐就必须在横向协作的责任机制、组织保障机制的等方面加强建设的力度。
[Abstract]:Domestic scholars' understanding of procuratorial unity is quite confused and even serious mistakes. At present, there are three kinds of definitions of procuratorial unity, namely, single element theory, two element theory and three element theory. However, there are different degrees of one-sidedness between the theory of single element, the theory of two elements and the theory of three elements, and part of the understanding is far from the original appearance of procuratorial integration. The concept of "procuratorial integration" should include four elements: external independence, internal vertical hierarchy construction, horizontal cooperation and procurator independence. For a long time, procuratorial unity as an important concept in the procuratorial system has been interpreted by scholars from different perspectives, but almost all of them understand it in a static way so as to solidify the procuratorial body into an inactive ossification. Procuratorial unity itself is a very flexible and dynamic category. It changes with the change of the mode of operation of state power, with the change of national policy, especially the goal of national criminal policy, and with the change of social culture. The centralization and democracy of state power, the attack and prevention of national criminal policy target, the authority and freedom of social culture all have a profound influence on the procuratorial body as variables. Chinese law clearly defines the independent relationship between procuratorial organs, courts, and public security organs, and the three have equal value rank. In addition, the Constitution clearly stipulates that procuratorial organs shall not be subjected to any party or organization when exercising their functions and powers. Interference by organs and individuals Therefore, compared with the procuratorial system implemented by the "separation of powers" countries, the procuratorial organs in our country have "super" independence in theory. But on the other hand, because the procuratorial organ is subject to the public security organ and the court. Local Party committees and governments control procuratorial personnel, and the reality of finance leads to the "super weak" independence of procuratorial organs in practice. Therefore, it is necessary to reform the existing relations between procuratorial and police, procuratorial organs, party committees and administration at all levels. In the internal vertical relationship of procuratorial unity, due to the historical and practical reasons, the internal performance of the procuratorial organs in our country is that the procuratorial organs have more than what is ordered, but the independence of the procurators is not enough. Therefore, the boundaries of entities and procedures must be set for the last order. In the internal horizontal cooperation of the procuratorial body, the weakness of the mechanism of investigating the procuratorial coordination responsibility makes the establishment of the coordination mechanism become a mere formality, and the lack of the cooperative assessment system affects the exertion of the cooperation enthusiasm. The weak fund guarantee restricts the establishment and perfection of the coordination mechanism, and the local protectionism puzzles the normal operation of the horizontal cooperation mechanism. Therefore, in order to realize the coordination and harmony between procuratorial organs, we must strengthen the construction of the responsibility mechanism of horizontal cooperation and the mechanism of organization and security.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.3
本文编号：2162348
[Abstract]:Domestic scholars' understanding of procuratorial unity is quite confused and even serious mistakes. At present, there are three kinds of definitions of procuratorial unity, namely, single element theory, two element theory and three element theory. However, there are different degrees of one-sidedness between the theory of single element, the theory of two elements and the theory of three elements, and part of the understanding is far from the original appearance of procuratorial integration. The concept of "procuratorial integration" should include four elements: external independence, internal vertical hierarchy construction, horizontal cooperation and procurator independence. For a long time, procuratorial unity as an important concept in the procuratorial system has been interpreted by scholars from different perspectives, but almost all of them understand it in a static way so as to solidify the procuratorial body into an inactive ossification. Procuratorial unity itself is a very flexible and dynamic category. It changes with the change of the mode of operation of state power, with the change of national policy, especially the goal of national criminal policy, and with the change of social culture. The centralization and democracy of state power, the attack and prevention of national criminal policy target, the authority and freedom of social culture all have a profound influence on the procuratorial body as variables. Chinese law clearly defines the independent relationship between procuratorial organs, courts, and public security organs, and the three have equal value rank. In addition, the Constitution clearly stipulates that procuratorial organs shall not be subjected to any party or organization when exercising their functions and powers. Interference by organs and individuals Therefore, compared with the procuratorial system implemented by the "separation of powers" countries, the procuratorial organs in our country have "super" independence in theory. But on the other hand, because the procuratorial organ is subject to the public security organ and the court. Local Party committees and governments control procuratorial personnel, and the reality of finance leads to the "super weak" independence of procuratorial organs in practice. Therefore, it is necessary to reform the existing relations between procuratorial and police, procuratorial organs, party committees and administration at all levels. In the internal vertical relationship of procuratorial unity, due to the historical and practical reasons, the internal performance of the procuratorial organs in our country is that the procuratorial organs have more than what is ordered, but the independence of the procurators is not enough. Therefore, the boundaries of entities and procedures must be set for the last order. In the internal horizontal cooperation of the procuratorial body, the weakness of the mechanism of investigating the procuratorial coordination responsibility makes the establishment of the coordination mechanism become a mere formality, and the lack of the cooperative assessment system affects the exertion of the cooperation enthusiasm. The weak fund guarantee restricts the establishment and perfection of the coordination mechanism, and the local protectionism puzzles the normal operation of the horizontal cooperation mechanism. Therefore, in order to realize the coordination and harmony between procuratorial organs, we must strengthen the construction of the responsibility mechanism of horizontal cooperation and the mechanism of organization and security.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.3
【参考文献】
相关期刊论文 前4条
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4 龙宗智;论依法独立行使检察权[J];中国刑事法杂志;2002年01期
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