公安机关行政职权与刑事职权交叉问题研究

发布时间：2018-09-06 19:28

【摘要】：享誉世界的法国启蒙思想家、著名法学家孟德斯鸠在其法学巨著《论法的精神》中阐述：“一切有权力的人都容易滥用权力。”从近代西方世界的法制进程看,主张立法、行政、司法完全独立的三权分立学说对许多国家产生了积极深远的影响。英美法系国家的职能机构相互独立、互为制约,职能机构内部的权限亦十分明晰。国内方面,不少学者在依法治国、建立社会主义法治社会的总原则指导下,提出了我国司法独立制度的多种见解,主张公、检、法三家分权独立、各司其职,但涉及司法机关内部多重职权的问题却少有研究。公安机关作为国家司法力量的主要组成部分,又肩负着国家行政管理这一重大职责,国家法律赋予单一主体双重职权。法学界普遍认为,一定限度内的职权是为保障公民权利所必需的,但超出限度或滥用职权,则会侵害公民合法权利、阻碍国家法治进程。为此,本文旨在通过对公安行政职权与刑事职权交叉的问题研究,解决执法实践中普遍存在的法律适用混乱、救济途径不畅及侵害公民权利等诸多问题。笔者首先从公安机关行政职权与刑事职权的概念、依据、范围入手,提出了两种职权的划分标准。随即,引入欧美国家和我国香港地区警察体制的先进经验,指出我国公安机关职权交叉和权力滥用的现状,深入分析立法不够完善、体制存在弊端、自由裁量权过大等因素是导致职权交叉的主要原因。通过上述研究,笔者对目前举国体制下能否适用英美法系的三权分立模式进行了可行性探讨。西方三权分立学说,是基于国家政治制度的特点、民主法治的发展、经济水平、文化传统而存在。我国现行体制下,各职能部门只有分工但并未分立,公安内部职权交叉的情况还将在一定时期内存在。面对现实环境的制约,笔者提出适度分立的理念。采取推进立法,解决法律冲突,弥补法律漏洞；推动警察体制改革,明晰公安职责和权限；权力规制,依法限制自由裁量权等措施。望能抛砖引玉,促使更多学者和相关机构对公安机关职权交叉的问题加以关注,切实解决。
[Abstract]:Montesquieu, a world-renowned French enlightenment thinker and famous jurist, states in his masterpiece on the Spirit of Law: "all who have power are apt to abuse power." From the perspective of the legal process in the western world in modern times, the doctrine of separation of powers, which advocates the complete independence of legislation, administration and judiciary, has had a positive and far-reaching impact on many countries. The functional institutions in Anglo-American law system are independent and restrict each other, and the competence of the functional institutions is also very clear. At home, many scholars, guided by the general principles of governing the country according to law and establishing a socialist society ruled by law, put forward a variety of views on the judicial independence system in our country. They advocated the separation of powers and independence of the public, the procurators, and the law, and carried out their respective duties. However, there is little research on the multiple functions and powers involved in the judiciary. As the main part of the national judicial power, the public security organ shoulders the important duty of the state administration, and the state law endows the single subject with dual functions and powers. Legal circles generally believe that power within a certain limit is necessary to protect the rights of citizens, but beyond the limit or abuse of power, it will infringe on the legitimate rights of citizens and hinder the process of the rule of law in the country. Therefore, the purpose of this paper is to solve many problems in law enforcement practice, such as the confusion of law application, the lack of relief channels and the infringement of citizens' rights through the research on the intersection of public security administrative powers and criminal powers. Starting with the concept, basis and scope of the administrative authority and criminal authority of public security organs, the author puts forward the criteria for the division of the two functions and powers. Then, by introducing the advanced experience of the police system in Europe and the United States and Hong Kong, the author points out the current situation of the overlapping of powers and powers of the public security organs in our country, and deeply analyzes the imperfect legislation and the drawbacks of the system. Excessive discretion and other factors are the main reasons leading to the intersection of functions and powers. Through the above research, the author probes into the feasibility of applying the system of separation of powers in Anglo-American law system. Western doctrine of separation of powers is based on the characteristics of national political system, the development of democracy and rule of law, economic level and cultural tradition. Under the present system of our country, each functional department has only the division of labor but has not been separated, the situation that the public security internal authority intersects will also exist in a certain period of time. Facing the restriction of realistic environment, the author puts forward the idea of moderate separation. Measures should be taken to promote legislation, resolve legal conflicts and make up for legal loopholes; promote the reform of the police system, clarify the duties and powers of public security, regulate power, and limit discretion according to law, and so on. It is hoped that more scholars and relevant institutions will pay more attention to the problem of public security organs' overlapping functions and powers, and solve them conscientiously.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D921;D922.1

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