检察机关侦查权的自我约束与外部制约

【出处】《法学研究》2009-2
【摘要】发生在江苏省赣榆县人民检察院反贪局的刑讯逼供案提出了对监督者进行监督的问题。检察机关的权存在被滥用的可能性，突出反映在非法取证行为和与此相联系的的滥用两个方面。检察机关虽然建立了自我约束机制，但这不足以有效防止侦查权的违法行使；检察机关侦查权也受到外部的监督制约，但外部的监督制约机制因种种原因功能弱化。完善和强化检察机关侦查权的自我约束和外部制约机制，基本路径是优化检察机关在自侦案件侦查过程中的权力配置，确立并严格实施以检察机关承担证据合法性证明责任为特征的。
【英文摘要】As the legal supervision organization，the prosecutorial organization should perform its duty of legal supervision over all the investigation and trial activities in criminal judicature. Moreover，it also exercises investigation power directly in official criminal cases to disclose and prove criminal facts timely and effectively. But as part of state power，the investigation power of the prosecutorial organization may also be abused. Firstly，power has its intrinsic nature of being abused，and the prosecutorial organization cannot make an exception. Secondly，it is very difficult to investigate into official crimes，and sometimes prosecutorial organizations cannot accomplish their tasks and purposes without violating legal procedures. Thirdly，though by unlawful means，the accomplishment of investigation task may bring benefits to the organization and personnel handling the case. Fourthly，the prosecutors cannot be effectively called to account for their unlawful investigation activities. In fact，the prosecutorial organization itself has realized that its investigation power may be abused，and has established self restriction mechanisms. Meanwhile，its investigation power is also be supervised and checked by exterior mechanisms. However，due to several reasons，the effect of such restriction mechanisms is not ideal. Some prosecutors lack consciousnesses of being supervised，and the allocation of power is also unscientific. Legal procedures of exercising investigation power are also too ****. And the examination and appraisal mechanisms are unreasonable，which pay too attention on efficiency and neglect the observation of legal procedures. To strengthen the self-restriction and exterior supervision mechanisms，prosecutors consciousnesses of self-restriction and acceptance others supervision should be strengthened，and the allocation of prosecutorial power should also be optimized，e. g.，the determining power'of adopting and delaying custody should belong to the higher organization. It is also important to abolish the compulsory measure of residential surveillance，for it can easily educe unlawful investigation activities. Lastly，the rule of excluding illegal evidence should be enforced strictly，and the prosecutorial organization should prove the legitimacy of its investigation activities.
【关键词】检察机关；侦查权滥用；侦查监督；权力制约
【英文关键词】abusing investigation power；supervision of investigation；the prosecutorial organization；the restriction of power ..