| Jurisdiction is the first threshold to achieve justice.A reasonably set jurisdictional system helps crime control,protection of the legal rights and interests of the parties and the realization of fairness and justice.The reform of the state supervision system has triggered changes in the jurisdictional pattern of criminal cases,and the supervisory organs have become the main investigative organs for duty crimes,meaning that supervisory investigation and criminal investigation have become the two main ways to investigate and handle criminal crimes at present.When the conduct of the prosecuted person is suspected of both the supervisory organs’ jurisdiction of duty crimes and the investigative organs’ jurisdiction of ordinary crimes,the issue of jurisdiction of the supervisory and investigative inter-involved cases arises.This involves both the interpretation of jurisdictional legal norms,the analysis of basic principles of jurisdiction,and the operation of jurisdictional practice models,as well as touching on the differences between the two major procedures in terms of rights protection and power control,and the jurisdictional practice difficulties resulting from these differences.It can be seen that the jurisdiction of mutual supervision and investigation cases is a topic that needs to be studied systematically.This thesis studies with the logical approach of "normative analysis,practice summary,theoretical fulcrum,system improvement",and makes full use of the methods of literature analysis,empirical research,comparative analysis and case analysis.The ultimate purpose is to put forward a systematic scheme for the application of the jurisdiction mode of mutual supervision and investigation cases and the improvement of relevant systems.The main body of this thesis is divided into seven chapters,which are carried out in turn:The first chapter mainly discusses the relevant concepts of the jurisdiction of mutual supervision and investigation cases.On the basis of combing the existing views of the academic circles,this thesis puts forward that "mutual supervision and investigation cases"refers to a general term of a class of cases under the jurisdiction of the supervision organ and the criminal investigation organ respectively.From the perspective of actors,the main types of mutual supervision and investigation cases should be the same subject type.From the perspective of jurisdictional subjects,mutual supervision and investigation cases have different jurisdictional subjects.The practical reason for the formation of mutual supervision and investigation cases is the relevance between the facts of the cases,and the institutional reason is the implementation of the reform of the national supervision system and the relevant legislation,and the theoretical reason is the principle of division of labor and responsibility in the setting of state power.The jurisdiction of mutual supervisory and investigative cases studied in this paper refers to the division of labor or allocation of case handling authority between the supervisory and investigative authorities in the mutual involvement cases.The distribution of case handling authority is reflected in the distribution principles and ways of implementation.In this paper,the supervisory authority jurisdiction over duty crime should be understood in a broad sense,the scope of supervisory jurisdiction is greater than the scope of the object of supervision,criminal investigation jurisdiction includes partial duty crime and civil servants,mutual supervision and investigation is not exactly the same as mutual involvement of duty crime and non-duty crime.The dominate of jurisdiction of mutual supervisory and investigative cases connotes that:the priority of the application of procedures when handling cases,the right to coordinate the interface and progress of cases,the right to decide on competing procedural measures and the right to coordinate procedural matters when disputes arise.The complexity of the jurisdictional issues of mutual supervision and investigation cases is reflected in the large differences in the crimes involved,the significantly different requirements for the operation of the procedures,the new impact of traditional jurisdictional principles,the different functions of coercive measures and the high degree of integration of multi-sectoral areas of law.The second chapter mainly discusses the jurisdiction principles of mutual supervision and investigation cases.The legislation of the jurisdiction principle of mutual supervision and investigation cases is scattered in different legal documents.The interpretation theories of the current norms can be roughly divided into "supervision leading theory","more appropriate theory","supervision leading restriction theory" and "main crime-oriented theory".Based on the analysis of the problems of these views,the author advocates that the reasonable interpretation is "supervision+case division leading theory",meaning that the case handling should be "case division and supervision leading" under normal circumstances,which is supplemented by "case consolidation and supervision leading" or "case division and investigation leading" under exceptional circumstances.Specifically,when the crimes under the jurisdiction of the supervisory organs are more serious than those under the jurisdiction of the investigative organs,they should be handled separately,and the supervisory organs should take the lead in the investigation and investigation of the prosecuted person.When the crime under the jurisdiction of the supervisory authority reaches a serious level but is less serious than the crime under the jurisdiction of the investigative authority,it can be handled in a joint case and the supervisory authority shall take the lead.When the crime under the jurisdiction of the supervisory authority does not reach the seriousness and is less serious than the crime under the jurisdiction of the investigative authority,it can be handled in separate cases and the investigation and investigation of the pursued person is led by the investigative authority.The"supervision+case divisional leading theory" is objective in the position of legal normative analysis,practically feasible in the logic of legal interpretation,and reasonable in the balance of litigation value.The third chapter mainly discusses the practical mode of jurisdiction of mutual supervision and investigation cases.According to the results of the empirical research,the current practice in the jurisdiction of supervisory and investigative interrelated cases can be distinguished into five models,namely,the parallel model,the subordinate model and the sequential model in the state of split case processing,and the concurrent model in the state of concurrent case processing.In addition,in practice,there is also a kind of special case mode between separate cases and parallel cases.Among them,the parallel mode refers to the jurisdictional allocation of the supervisory and investigative organs in the case of mutual involvement,the supervisory organs and the investigative organs file cases separately and handle the cases separately,but the procedures and measures in the case of competing procedures shall apply the investigative procedures and measures of the supervisory organs,and the investigative activities of the investigative organs are also carried out in the supervisory investigation procedures.The sequential mode refers to the mode in which the supervision organ finds the case clues that should be under the jurisdiction of the investigation organ in the process of case handling,or when the investigation organ first finds the case clues that should be under the jurisdiction of the supervision organ in the process of case handling,it will be transferred to the supervision organ for priority handling,and the investigation organ will start the work after the investigation work of the supervision organ is basically completed.The continuation mode refers to the mode that the investigation organ finds the case clues under the jurisdiction of the supervision organ in the process of case handling,and the supervision organ investigates after the investigation organ finishes the investigation.Concurrent mode refers to the mode that the supervisory organs will be under the full jurisdiction of the cases that originally belong to the supervisory organs and investigative organs respectively.The special case mode refers to the supervisory organs as the core of the case,including the investigative organs to participate in the case,and jointly form a task force to jointly handle cases involving supervision and investigation.After the case is completed,the supervisory organs and investigative organs are transferred to the procuratorial organs for examination and prosecution in their respective names in accordance with their jurisdiction.The fourth chapter mainly discusses the positive effects and existing problems of the jurisdiction practice mode of mutual supervision and investigation cases.The practical mode of jurisdiction over cases involving mutual supervision and investigation has achieved certain positive results,improved the comprehensive efficiency of crime governance,enhanced the case handling coordination of supervision and investigation organs,solved the problem of unclear ownership of case jurisdiction,and weakened the arbitrary risk of power exercise.However,there are many disadvantages to be solved urgently.The relevant practice deviates from the legislative expectation,which is manifested in the trend of excessive integration of investigation procedures.The problem of supervision and guidance of investigation is more serious,and the expected exception of "investigation leading" has not appeared.There is lack of standardization of the merger mode and the special case mode.The jurisdiction connection of mutual supervision and investigation cases is not smooth,and the transfer of other criminal clues from the supervision organ to the investigation organ lags behind.In the practice of jurisdiction mode,the imbalance of "power right" restriction system is generally reflected,which is mainly reflected in the systematic difference in the effectiveness of power control between supervision and investigation procedures,lawyers are unable to intervene in case investigation procedures and the transfer of property has an unreasonable separation of criminal law and discipline.In addition,the jurisdiction distribution mechanism of co-managed crimes is unclear,and the excessive jurisdiction pressure of the supervision organ affects the rationality of the mode selection,which leads to the participation of the investigation organ in case handling as a way to alleviate the pressure of the supervision organ and the weakening of the grass-roots case handling power.The fifth chapter mainly discusses the theoretical guidance of solving the jurisdiction of mutual supervision and investigation cases.The perspective of non comparative justice and comparative justice in social justice theory is of great significance to coordinate the two justice fields of criminal procedure and supervision investigation.Non comparative justice and comparative justice make a reasonable theoretical distinction between "justice bottom line standard" and "justice form gap".The requirement of jurisdiction justice of mutual supervision and investigation cases is to strengthen the unity of prosecution efficiency and objective justice,ensure the matching of normative purpose and practical mode,and realize the balance between unilateral governance and the differences of the two parties.The bottom line of justice standards of mutual supervision and investigation of cases should be handled as a basic treatment,strictly limit the mode of concurrent cases and special cases,and sub-case processing should be substantive.The bottom line of justice in the criminal investigation process should include the openness and confrontation of the procedural structure.The establishment of procedural control and procedural remedy mechanisms guarantees the independent handling of cases,as well as the exercise of power to satisfy the principle of proportionality.Drawing on the concept of comparative justice,the comparative gap between the justice of the two major procedures is reconciled,allowing for variability between specific models and between monitoring/investigation procedures,but such differences between each other should be controlled within a reasonable range.The sixth chapter mainly discusses the optimization and application of the jurisdiction mode of mutual supervision and investigation cases.At present,the five modes existing in practice need to be further improved.Specifically,the parallel mode currently meets the legislative requirements and should be adhered to,the sequential mode should be strict with its application conditions,and the continuation mode should be further extended and applied.The application of the concurrent case model should strictly follow the three principles of merging cases led by the supervision organ,no case merging under the circumstance that the investigative organ has already filed a case first,and the application of the concurrent case of supervision and police should be more strict than the supervision and prosecution.The application of the special case model should be limited to the personnel of the supervisory and investigative organs,and should not include the personnel of the public prosecution and trial organs.The application of the jurisdiction model should first clarify the division standard of the severity of the crime,and take the "five main and seven auxiliary theories" as the division standard of the severity of the crime,that is,the legal punishment corresponding to the crime is regarded as non serious if it is less than five years,while it is regarded as serious if it is more than five years(inclusive).However,for some crimes with a large range of legal punishment in serious cases,seven years should be used as the dividing point to distinguish between serious and non serious.Finally,we propose the idea of matching jurisdictional models to different situations,and the "differential solution" in the case of "separate cases and supervision-led".This means that the parallel mode is preferred,complemented by the sequential or continuous mode,and the special case mode can be chosen only when the case is particularly serious.The "progressive scheme" in the situation of "concurrent processing and monitoring centralizing" refers to the progressive pattern of "parallel case modeconcurrent case mode,special case mode".First consider whether the parallel mode is suitable,if not,then choose the parallel mode or special case mode.In the context of "separate cases,investigation-led","alternative solutions" means that when there is no practical model of investigation-led inquiry,it is possible to adopt a subordinate model or a sequential model,but the inquiry should be led by the investigation authorities.The seventh chapter mainly discusses the improvement of relevant supporting systems.The perfection of many problems in the jurisdiction practice of mutual supervision and investigation cases also needs the support of relevant auxiliary systems.First,we should clarify the follow-up mechanism for the jurisdiction of mutual supervision and investigation cases,establish a standardized communication mechanism between supervision organs and investigation organs,and establish the specific way of transferring cases for prosecution.We should also clarify that the internal jurisdiction coordination of mutual supervision and investigation cases should follow the principle of "secondary follow the main".The second is to improve the right relief and power supervision system,including the construction of the relief and objection system for jurisdictional errors,the establishment of a "gradual embedded" lawyer intervention mechanism,the strengthening of procuratorial organs to actively intervene in supervision according to their functions and powers,and the realization of the unified setting and neutral management of supervision,investigation and detention places.The third is to adjust the functional jurisdiction of the supervision and investigation organ.The supervision organ should gradually withdraw from the crime of joint supervision with police,and expand the investigation power of the procuratorial organ for dereliction of duty crime to balance the pressure of jurisdiction. |
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