作　者：朱福惠
关键词：监察调查；合法性审查；权力制约；审查限度；监察法学；国家监察体制改革
摘　要：

《人民检察院刑事诉讼规则》（下文简称《刑事诉讼规则》）是最高人民检察院为实施《刑事诉讼法》和《人民检察院组织法》而制定的司法解释。它在总结监察调查与检察机关审查起诉衔接实践经验的基础上，具体化了检察机关审查监察机关移送起诉案件合法性的规定，从而落实《宪法》和《监察法》关于监察机关与检察机关相互配合、相互制约的规定。它还明确了人民检察院从非法证据排除、监察证据与案件事实的真实性、案件材料的完整性三个方面对案件进行合法性审查，其基本目标是促进监察调查的刑事化转型，从而实现监察调查与刑事诉讼内在价值的统一。检察机关的合法性审查是刑事诉讼审查起诉阶段的职能行为，其实质是检察机关对监察调查的外部制约，不属于检察机关法律监督的范畴。所以，检察机关只审查监察机关移送起诉案件的证据、事实和材料，并不判断监察立案和监察调查行为的合法性；如果检察机关审查后认为存在非法证据或者证据真实性存疑，只能将案件退回补充调查或者要求监察机关履行补充证据和说明义务，但不能运用检察建议和纠正违法行为等法律监督方式。

 

The Legality Review of the Cases Transferred from Prosecution by the Supervisory Organ

Interpretation of The Criminal Procedure Rules of the People's Procuratorate

Zhu Fuhui (Xiamen University)

 

Abstract The Criminal Procedure Rules of the People's Procuratorate (hereinafter referred to as The Criminal Procedure Rules) is the judicial interpretation issued by the Supreme People’s Procuratorate in order to implement The Criminal Procedure Law and The Organization Law of The People's Procuratorate. It summarizes the practical experience of the connection between the supervisory investigation and the examination and prosecution of the procuratorial organ. It specifies in detail the requirements for the procuratorial organ to examine the legality of the cases transferred by the supervisory organ, so as to implement the provisions of The Constitution and The Supervision Law on mutual cooperation and mutual restriction between the supervisory organ and the procuratorial organ. It stipulates the examination of the legality of the cases by the procuratorial organ from three aspects: the exclusion of illegal evidence, the authenticity of evidence and case facts, and the integrity of case materials. Its basic goal is to promote the criminal transformation of the investigation of duty crimes by the supervisory organ, so as to realize the consistency of the intrinsic value of the supervisory investigation and criminal procedure. The legality review of the procuratorial organ is a functional act in the stage of the examination and prosecution of the criminal procedure. Its essence is the external restriction of the procuratorial organ to the supervisory organ in the process of duty crime investigation, and does not belong to the scope of legal supervision of procuratorial organ. So it is only applicable to the legality of the evidence and materials transferred by the supervisory organ for prosecution, which does not involve the legality judgment of case filing and investigation by supervisory organ. If the procuratorial organ believes that there is illegal evidence or doubts about the authenticity of the evidence after examination, the procuratorial organ can only return the case for supplementary investigation or require the supervisory organ to present supplementary evidence and to fulfil demonstrative obligation, but is not allowed to use legal supervision means such as correcting illegal actions and issuing procuratorial suggestions.

Key words supervisory investigation; legality review; power restriction; limits of review; supervisory Jurisprudence; national supervision system reform

 

■ 作者简介 朱福惠，法学博士，厦门大学法学院教授、博士生导师；福建 厦门 361005。

 

[PDF]（下载数：）