论我国的职务犯罪侦查模式
发布时间：2019-05-20 13:39
【摘要】： 职务犯罪作为公权力腐败的一种最极端的表现形式，对国家政治、经济和社会秩序构成了严重危害。我国正处于从计划经济体制向社会主义市场经济体制转换的过程中，适应市场经济发展要求的管理体制、监督制约机制还处在探索和完善之中，还不可能达到严密规范，社会主义民主和法制也不可能在短时期内得以完备，这就为腐败滋生蔓延提供了温床。检察机关是我国担负着侦查职务犯罪职能的重要反腐部门之一，在当前的形势下既要有效的打击职务犯罪，又要兼顾犯罪嫌疑人人权的保障，探索一个适合我国国情的职务犯罪侦查模式势在必行。 从刑事诉讼构造的视角来看，职务犯罪侦查模式分为当事人主义侦查模式和职权主义侦查模式，当事人主义侦查模式优势在于保障人权，而职权主义侦查模式优势重在打击犯罪。我国当前的职务犯罪侦查模式属于职权主义侦查模式，这是由我国悠久的法文化和政治经济发展的现状、前苏联模式影响以及当前职务犯罪形势的严峻性等诸多因素所决定的。我国职务犯罪侦查模式的缺陷在于：虽然属于职权主义侦查模式，却并没有在实践中发挥出高效率打击职务犯罪的优势；而在犯罪嫌疑人人权保障不力方面更有其固有的表现。 我国职务犯罪职权主义侦查模式打击职务犯罪不力的原因主要是：检察机关双层领导体制导致的职务犯罪侦查权不独立，职务犯罪侦查机构设置不合理和检察机关职务犯罪侦查权的不完善。因此，必须明确职务犯罪侦查权应当由检察机关独立行使，整合反贪污贿赂局和渎职侵权检察局为职务犯罪侦查局，专门负责职务犯罪案件的侦查；必须理顺检察机关与党政部门的关系，可以考虑对全国检察机关实行直属中央的垂直领导体制，以保障检察机关独立行使职务犯罪侦查权；必须明确赋予检察机关完整的侦查权并予以完善。 我国职务犯罪职权主义侦查模式在对犯罪嫌疑人的人权保障方面还比较薄弱，主要表现在：“双规”“两指”的不规范操作对于人权保障造成不利影响；职务犯罪强制侦查行为司法审查机制的缺失对于人权保障明显不利；律师在侦查阶段的会见难更是阻碍了犯罪嫌疑人获得法律帮助的渠道。因此，随着检察机关独立性的增强和职务犯罪侦查职能的完善，从长远看，应当摒弃依靠纪检监察部门的“双规”“两指”来侦破案件的做法；在我国建立侦查法官制度，对职务犯罪侦查行为进行必要的司法审查；切实保障职务犯罪侦查阶段律师为犯罪嫌疑人提供法律帮助的诉讼权利。 通过改革和完善我国的职务犯罪侦查模式，使检察机关既能高效率惩治职务犯罪，，同时兼顾保障人权，以适应当前职务犯罪形势严峻的现状，为构建社会主义和谐社会添砖加瓦。
[Abstract]:As one of the most extreme forms of public power corruption, duty crime has caused serious harm to the national political, economic and social order. China is in the process of transforming from the planned economy system to the socialist market economy system. The management system that meets the requirements of the development of the market economy, the supervision and restriction mechanism is still in the process of exploration and improvement, and it is impossible to achieve strict standards. Socialist democracy and legal system cannot be completed in a short period of time, which provides a breeding ground for corruption to breed and spread. Procuratorial organs are one of the important anti-corruption departments that undertake the function of investigating duty crimes in our country. Under the current situation, we should not only effectively crack down on duty crimes, but also take into account the protection of the human rights of criminal suspects. It is imperative to explore a duty crime investigation mode suitable for the national conditions of our country. From the perspective of the structure of criminal proceedings, the investigation mode of duty crime can be divided into two modes: litigant investigation mode and authoritarian investigation mode. The advantage of the litigant investigation mode lies in the protection of human rights. The advantage of functional investigation mode is to crack down on crime. The current investigation mode of duty crime in our country belongs to the functional investigation mode, which is determined by many factors, such as the present situation of the long legal culture and political and economic development of our country, the influence of the former Soviet Union model and the seriousness of the current situation of duty crime. The defects of the investigation mode of duty crime in our country are as follows: although it belongs to the functional investigation mode, it does not give full play to the advantage of cracking down on duty crime efficiently in practice, and it has its inherent performance in the aspect of weak protection of human rights of criminal suspects. The main reasons why the investigation mode of duty crime in our country is weak in cracking down on duty crime is that the investigation power of duty crime caused by the double leadership system of procuratorial organs is not independent. The establishment of the investigation organization of the duty crime is unreasonable and the investigation power of the duty crime of the procuratorial organ is not perfect. Therefore, it must be made clear that the power of investigation of duty crimes should be exercised independently by procuratorial organs, and the Bureau of Anti-Corruption and bribery and the Bureau of malfeasance and infringement should be integrated into the Bureau of investigation of Duty crimes, which should be specially responsible for the investigation of cases of duty crimes. It is necessary to straighten out the relationship between the procuratorial organs and the party and government departments, and we can consider carrying out the vertical leadership system directly under the central government for the procuratorial organs of the whole country, so as to ensure the procuratorial organs to independently exercise the power of investigation and investigation of official crimes. The procuratorial organs must be clearly given complete powers of investigation and improved. The investigation mode of duty crime authority in our country is still relatively weak in the protection of human rights of criminal suspects, which is mainly manifested in the following aspects: the irregular operation of "double rules" and "two fingers" has a negative impact on the protection of human rights; The lack of judicial review mechanism for compulsory investigation of duty crimes is obviously disadvantageous to the protection of human rights, and the difficulty of meeting lawyers in the investigation stage hinders the channels for criminal suspects to obtain legal help. Therefore, with the enhancement of the independence of procuratorial organs and the improvement of the investigation function of duty crimes, in the long run, we should abandon the practice of relying on the "double rules" of discipline inspection and supervision departments to detect cases. To establish the investigation judge system in our country, to carry on the necessary judicial review to the duty crime investigation behavior, and to guarantee the litigation right of the lawyer to provide legal assistance to the criminal suspect in the investigation stage of the duty crime. Through reforming and perfecting the investigation mode of duty crime in our country, the procuratorial organs can not only punish the duty crime efficiently, but also give consideration to the protection of human rights, so as to adapt to the serious situation of duty crime at present. To contribute to the construction of a harmonious socialist society.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D925.2;D918
本文编号：2481684
[Abstract]:As one of the most extreme forms of public power corruption, duty crime has caused serious harm to the national political, economic and social order. China is in the process of transforming from the planned economy system to the socialist market economy system. The management system that meets the requirements of the development of the market economy, the supervision and restriction mechanism is still in the process of exploration and improvement, and it is impossible to achieve strict standards. Socialist democracy and legal system cannot be completed in a short period of time, which provides a breeding ground for corruption to breed and spread. Procuratorial organs are one of the important anti-corruption departments that undertake the function of investigating duty crimes in our country. Under the current situation, we should not only effectively crack down on duty crimes, but also take into account the protection of the human rights of criminal suspects. It is imperative to explore a duty crime investigation mode suitable for the national conditions of our country. From the perspective of the structure of criminal proceedings, the investigation mode of duty crime can be divided into two modes: litigant investigation mode and authoritarian investigation mode. The advantage of the litigant investigation mode lies in the protection of human rights. The advantage of functional investigation mode is to crack down on crime. The current investigation mode of duty crime in our country belongs to the functional investigation mode, which is determined by many factors, such as the present situation of the long legal culture and political and economic development of our country, the influence of the former Soviet Union model and the seriousness of the current situation of duty crime. The defects of the investigation mode of duty crime in our country are as follows: although it belongs to the functional investigation mode, it does not give full play to the advantage of cracking down on duty crime efficiently in practice, and it has its inherent performance in the aspect of weak protection of human rights of criminal suspects. The main reasons why the investigation mode of duty crime in our country is weak in cracking down on duty crime is that the investigation power of duty crime caused by the double leadership system of procuratorial organs is not independent. The establishment of the investigation organization of the duty crime is unreasonable and the investigation power of the duty crime of the procuratorial organ is not perfect. Therefore, it must be made clear that the power of investigation of duty crimes should be exercised independently by procuratorial organs, and the Bureau of Anti-Corruption and bribery and the Bureau of malfeasance and infringement should be integrated into the Bureau of investigation of Duty crimes, which should be specially responsible for the investigation of cases of duty crimes. It is necessary to straighten out the relationship between the procuratorial organs and the party and government departments, and we can consider carrying out the vertical leadership system directly under the central government for the procuratorial organs of the whole country, so as to ensure the procuratorial organs to independently exercise the power of investigation and investigation of official crimes. The procuratorial organs must be clearly given complete powers of investigation and improved. The investigation mode of duty crime authority in our country is still relatively weak in the protection of human rights of criminal suspects, which is mainly manifested in the following aspects: the irregular operation of "double rules" and "two fingers" has a negative impact on the protection of human rights; The lack of judicial review mechanism for compulsory investigation of duty crimes is obviously disadvantageous to the protection of human rights, and the difficulty of meeting lawyers in the investigation stage hinders the channels for criminal suspects to obtain legal help. Therefore, with the enhancement of the independence of procuratorial organs and the improvement of the investigation function of duty crimes, in the long run, we should abandon the practice of relying on the "double rules" of discipline inspection and supervision departments to detect cases. To establish the investigation judge system in our country, to carry on the necessary judicial review to the duty crime investigation behavior, and to guarantee the litigation right of the lawyer to provide legal assistance to the criminal suspect in the investigation stage of the duty crime. Through reforming and perfecting the investigation mode of duty crime in our country, the procuratorial organs can not only punish the duty crime efficiently, but also give consideration to the protection of human rights, so as to adapt to the serious situation of duty crime at present. To contribute to the construction of a harmonious socialist society.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D925.2;D918
【引证文献】
相关硕士学位论文 前3条
1 邢芳;香港反贪侦查模式研究[D];中国政法大学;2011年
2 能昌银;论受贿罪侦查取证中的问题及对策[D];山东大学;2012年
3 魏薇;法治视野下的惩防体系建设探析[D];浙江大学;2012年
本文编号：2481684
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