职务犯罪侦查模式论
发布时间：2018-08-16 10:56
【摘要】：在职务犯罪侦查中，检察机关与犯罪嫌疑人是相互独立也是相互对立的诉讼主体。所谓职务犯罪侦查模式，即是检察机关在启动侦查程序之后，与犯罪嫌疑人各自展开诉讼活动所依据的程序制度的总和。从诉讼结构的角度来考察，职务犯罪侦查模式主要包括四个基本要素：职务犯罪侦查中的诉讼主体，即检察机关与犯罪嫌疑人这一对诉讼主体；职务犯罪侦查中的诉讼权能，即检察机关的诉讼权力与犯罪嫌疑人的诉讼权利；职务犯罪侦查中的诉讼规则，即检察机关与犯罪嫌疑人在职务犯罪侦查程序中应当遵守的程序法规则，以规范检察机关与犯罪嫌疑人在利益冲突中形成的权能对峙，加强对犯罪嫌疑人正当权益的保障；职务犯罪侦查中的内外制衡，主要指通过加强内部的制约和外部的监督来规范侦查权力的行使，促进司法的公正。考察我国历史上历朝对官吏纠察问罪的规定，在“重典惩贪”思想的指导下，特别重视纠察机构的纠问职权，仅把被纠察官吏作为纠问的对象，纠察活动带有强烈的专制色彩。我国现行刑事诉讼法虽然赋予犯罪嫌疑人诉讼主体的地位，但与检察机关在侦查程序中的权力相比，毫无疑问处于绝对劣势。在职务犯罪侦查中，以强大的国家强制力为后盾所行使的侦查权力，带有明显的纠问主义色彩，这也与我国诉讼体制的基本建构属于大陆法系类型有关。大体来讲，现代的侦查模式类型可以分为职权主义侦查模式和弹劾主义侦查模式。大陆法系国家在刑事诉讼领域秉持犯罪控制观，其所采取的侦查模式可以归属为职权式，英美法系国家秉持权利保障观，其所采取的侦查模式可以归属为弹劾式。职权主义侦查模式与弹劾主义侦查模式各有特色。在职权主义侦查模式中，侦查机关处于比较强势的地位，且侦查与起诉工作的衔接非常紧密，所以更有利于打击和控制犯罪；在弹劾主义侦查模式中，侦查机关与嫌疑人处于对等的地位，且对侦查权力的限制比较严格，所以更有利于维护嫌疑人的权益。我国现在的职务犯罪侦查模式属于职权主义类型的侦查模式。由于我国目前处于职务犯罪的多发和高发期，所以坚决打击和遏制职务犯罪仍将是我们必须坚持的应对方针，但同时也应适当吸收弹劾主义侦查模式中的一些合理之处，，尽量在有效控制犯罪与有效保障权利之间实现基本的平衡。 侦查程序的开启，是对案件事实调查的开始，侦查程序的终结，是对案件事实调查的完结。在侦查程序中，有什么样的案件真实观，就有什么样的侦查模式。在我国职务犯罪侦查程序中，应当树立辨证的真实观。因为职务犯罪侦查活动的首要问题是发现案件事实的客观真实，亦即应努力还原案件的原貌，这是检察机关开展侦查活动的当然任
[Abstract]:In the investigation of duty crime, the procuratorial organ and the criminal suspect are independent and opposite subject of litigation. The so-called duty crime investigation mode is the summation of the procedural system on which the procuratorial organ starts the investigation procedure and carries out the lawsuit activities with the criminal suspect respectively. From the point of view of litigation structure, the investigation mode of duty crime mainly includes four basic elements: the main body of litigation in the investigation of duty crime, that is, the procuratorial organ and the criminal suspect as a pair of litigant subjects, the power of action in the investigation of duty crime, That is, the procedural power of the procuratorial organ and the lawsuit right of the criminal suspect, the procedural rules in the investigation of the duty crime, that is, the procedural law rules that the procuratorial organ and the criminal suspect should abide by in the procedure of the investigation of the duty crime, In order to standardize the power confrontation between the procuratorial organ and the criminal suspect in the conflict of interest, to strengthen the protection of the legitimate rights and interests of the criminal suspect; the internal and external checks and balances in the investigation of duty crime, It mainly refers to standardizing the exercise of investigative power and promoting judicial justice by strengthening internal restriction and external supervision. Under the guidance of the thought of "severe punishment and corruption", we pay special attention to the power of correction of the correctional institutions, and only take the officials under correction as the object of inquiry, and the activities of correction have a strong autocratic tinge. Although the current criminal procedure law of our country gives the criminal suspect the status of the main body of the lawsuit, but compared with the power of the procuratorial organ in the investigation procedure, it is undoubtedly at an absolute disadvantage. In the investigation of job-related crimes, the investigative power exercised on the basis of the powerful national coercive force has a distinct interrogationist color, which is also related to the basic construction of the litigation system of our country belonging to the type of continental legal system. Generally speaking, the modern investigation mode can be divided into authority investigation mode and impeachment investigation mode. Civil law countries uphold the concept of crime control in the field of criminal procedure, and the investigation mode adopted by them can be attributed to the style of power, and the mode of investigation adopted by countries of common law system can be attributed to impeachment. The investigative mode of power doctrine and impeachment principle have their own characteristics. In the investigation mode of power doctrine, the investigative organ is in a relatively strong position, and the work of investigation and prosecution is closely linked, so it is more conducive to the fight against and control of crime; in the mode of impeachment investigation, Investigation organ and suspect are in equal position, and the power of investigation is restricted strictly, so it is more advantageous to safeguard the rights and interests of suspect. The investigation mode of duty crime in our country now belongs to the investigation mode of power doctrine. As our country is currently in the period of frequent and high incidence of job-related crimes, resolutely cracking down on and containing job-related crimes will still be the policy we must adhere to, but at the same time, we should also appropriately absorb some reasonable points in the impeachment investigation model. Try to achieve a basic balance between effective crime control and effective protection of rights. The opening of investigation procedure is the beginning of case fact investigation, the end of investigation procedure and the conclusion of case fact investigation. In the investigation procedure, what kind of case truthfulness view, has what kind of investigation pattern. In our country duty crime investigation procedure, should establish the dialectical truth view. Because the primary problem in the investigation of job-related crimes is to find the objective truth of the facts of the case, that is to say, we should try to restore the original appearance of the case, which is the natural duty of the procuratorial organs to carry out the investigation activities.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2006
【分类号】：D918;D925.2
本文编号：2185779
[Abstract]:In the investigation of duty crime, the procuratorial organ and the criminal suspect are independent and opposite subject of litigation. The so-called duty crime investigation mode is the summation of the procedural system on which the procuratorial organ starts the investigation procedure and carries out the lawsuit activities with the criminal suspect respectively. From the point of view of litigation structure, the investigation mode of duty crime mainly includes four basic elements: the main body of litigation in the investigation of duty crime, that is, the procuratorial organ and the criminal suspect as a pair of litigant subjects, the power of action in the investigation of duty crime, That is, the procedural power of the procuratorial organ and the lawsuit right of the criminal suspect, the procedural rules in the investigation of the duty crime, that is, the procedural law rules that the procuratorial organ and the criminal suspect should abide by in the procedure of the investigation of the duty crime, In order to standardize the power confrontation between the procuratorial organ and the criminal suspect in the conflict of interest, to strengthen the protection of the legitimate rights and interests of the criminal suspect; the internal and external checks and balances in the investigation of duty crime, It mainly refers to standardizing the exercise of investigative power and promoting judicial justice by strengthening internal restriction and external supervision. Under the guidance of the thought of "severe punishment and corruption", we pay special attention to the power of correction of the correctional institutions, and only take the officials under correction as the object of inquiry, and the activities of correction have a strong autocratic tinge. Although the current criminal procedure law of our country gives the criminal suspect the status of the main body of the lawsuit, but compared with the power of the procuratorial organ in the investigation procedure, it is undoubtedly at an absolute disadvantage. In the investigation of job-related crimes, the investigative power exercised on the basis of the powerful national coercive force has a distinct interrogationist color, which is also related to the basic construction of the litigation system of our country belonging to the type of continental legal system. Generally speaking, the modern investigation mode can be divided into authority investigation mode and impeachment investigation mode. Civil law countries uphold the concept of crime control in the field of criminal procedure, and the investigation mode adopted by them can be attributed to the style of power, and the mode of investigation adopted by countries of common law system can be attributed to impeachment. The investigative mode of power doctrine and impeachment principle have their own characteristics. In the investigation mode of power doctrine, the investigative organ is in a relatively strong position, and the work of investigation and prosecution is closely linked, so it is more conducive to the fight against and control of crime; in the mode of impeachment investigation, Investigation organ and suspect are in equal position, and the power of investigation is restricted strictly, so it is more advantageous to safeguard the rights and interests of suspect. The investigation mode of duty crime in our country now belongs to the investigation mode of power doctrine. As our country is currently in the period of frequent and high incidence of job-related crimes, resolutely cracking down on and containing job-related crimes will still be the policy we must adhere to, but at the same time, we should also appropriately absorb some reasonable points in the impeachment investigation model. Try to achieve a basic balance between effective crime control and effective protection of rights. The opening of investigation procedure is the beginning of case fact investigation, the end of investigation procedure and the conclusion of case fact investigation. In the investigation procedure, what kind of case truthfulness view, has what kind of investigation pattern. In our country duty crime investigation procedure, should establish the dialectical truth view. Because the primary problem in the investigation of job-related crimes is to find the objective truth of the facts of the case, that is to say, we should try to restore the original appearance of the case, which is the natural duty of the procuratorial organs to carry out the investigation activities.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2006
【分类号】：D918;D925.2
【引证文献】
相关期刊论文 前1条
1 吴利娜;;从律师法的修改看我国职务犯罪侦查模式的变迁[J];法制与社会;2008年26期
相关会议论文 前1条
1 于喜峰;刘志惠;;侦查程序修改与职务犯罪侦查办案模式校正[A];第八届国家高级检察官论坛论文集：侦查程序的修改与检察工作应对[C];2012年
相关博士学位论文 前1条
1 任学强;腐败犯罪特殊诉讼程序研究[D];上海交通大学;2010年
相关硕士学位论文 前10条
1 邢芳;香港反贪侦查模式研究[D];中国政法大学;2011年
2 于欣;法律监督视角下的职务犯罪侦查问题研究[D];中国政法大学;2011年
3 杜志辉;利用影响力受贿犯罪的侦查取证问题研究[D];西南政法大学;2011年
4 王珂;职务犯罪侦查一体化机制运行与完善[D];黑龙江大学;2010年
5 管文;职务犯罪初查问题研究[D];西南政法大学;2011年
6 王国锋;职务犯罪侦查权的监督与制约机制研究[D];中国政法大学;2008年
7 张自超;我国职务犯罪初查制度研究[D];中国政法大学;2009年
8 周晓东;论我国反腐败机构的完善[D];苏州大学;2009年
9 文艺兰;中韩两国检警关系比较[D];延边大学;2010年
10 田稼馨;论反腐败案件中对犯罪嫌疑人的权利保障[D];中国政法大学;2010年
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