论文部分内容阅读
在侦查构造的控辩双方中必须要有一个中立的裁判者。法院作为侦查构造中的裁判方会产生对案件的实质审查 ,导致“先定后审” ;现行的国家赔偿法也使得法院无法作超然的中立者。由检察机关来担负侦查构造中中立者的角色 ,与检察机关作为法律监督机关的定位是一致的。但是 ,由于检察机关的权力重叠、角色冲突 ,作为侦查构造的裁判者角色也有一定的障碍。因而必须改革检察机关的职权 ,确立检察机关只行使监督权 ,其侦查权划归其他部门隶属。检察机关通过行使对侦查活动的在场权、建议权、评判权、处罚权、司法审查权和消极侦查权等来实现对侦查机关的监督 ,从而成为侦查构造中的中立者、裁判者。
There must be a neutral judge in both the prosecution and the defense of the investigation structure. As a referee in the investigation structure, the court will produce a substantive examination of the case, leading to “a trial of first instance.” The current law of state compensation also makes the court unable to make transcendental neutrals. The prosecutorial organs to assume the role of neutrality in the investigation structure is consistent with the procuratorial organs as the legal supervision authority. However, as the procuratorial organs have overlapping powers and conflicting roles, the role of judge as investigative structure also has some obstacles. Therefore, it is necessary to reform the powers of the procuratorial organs, establish the procuratorial organs to exercise the power of supervision only, and place their investigation power under the jurisdiction of other departments. The procuratorial organs, through the exercise of the right of presence, suggestion of power, right of judgment, right of punishment, right of judicial review and negative investigation, etc., exercise supervision over the investigation organ so as to become neutral and referees in the investigation structure.