| With the development of the country under the rule of law and the strengthening of the country's fight against corruption.The reform of the supervision system aimed at"establishing a'centralized,unified,authoritative and efficient' anti-corruption system under the rule of law,strengthening the self-supervision capacity of the party and the state,and promoting the modernization of the governance system and capacity of the state" is a necessary step to achieve the fundamental victory in the fight against corruption under the rule of law.The report of the 19th national congress of the communist party of China(CPC)proposed to "formulate a national supervision law and replace the two regulations with lien."Made the top-level design for the supervision system reform.The amendment to the constitution adds a section entitled"supervisory committee" to the chapter on "state institutions'.It is clear that the supervisory commission,as an independent and specialized political institution,is parallel to the people's government,the people's court and the people's procuratorate.Thus formed the "one government,one committee and two houses" the new structure of the state organs.It provides the rule of law for the reform of the supervisory system.With the introduction of the supervision law,lien has been granted the legal status as one of more than ten statutory investigation measures including sealing up and freezing interview and interrogation.It has become an effective means and an important weapon to fight corruption under the rule of law.Supervision lien is granted to supervisory organs by the supervision law,which is in parallel with the power of criminal investigation and administrative investigation.As the only investigation measure enjoyed by the supervisory committee that can restrict the right of personal freedom,lien effectively solves the dilemma that the discipline inspection authority has no legal authorization for a long time.Compared with the investigation measures that require relevant personnel to explain the problems involved in the case at the specified place and time,lien measures has greater significance for the progress of the rule of law.It not only realizes the effective connection of party discipline and state law,but also more conforms to the era requirements of anti-corruption under the rule of law in the new era of China.Therefore,taking the supervision law as the basic basis and combining with the problems encountered in the current practice of supervisory organs,this paper discusses the nature and functional orientation of lien measures,and explores the causes of the problems of lien measures from the surface to the inside.It is of great significance to clarify the power boundary of lien measure and promote its standardized operation.In addition to the introduction and conclusion,The main content of this paper is divided into four parts.The first part discusses the necessity and significance of setting up lien measures in supervisory organs.Based on the nature of the illegal and criminal cases and the particularity of the key evidence obtained.Supervisory agencies need strong investigative tools such as liens.By taking measures to restrict personal freedom,we can control the person under investigation in time to investigate and handle the case effectively when the case begins to grasp certain clues of the case.This is the necessity of setting up the lien measure.As an important anti-corruption measure in the supervision system reform under the background of comprehensively governing the country by law,the lien measure is an important embodiment of the party and the state's enforcement of the law.as well as the embodiment of the establishment of a scientific supervision and governance systemand also promotes the efficiency of anti-corruption work.The discipline inspection and supervision organs are responsible for all the anti-corruption work,which is conducive to concentrating forces,unifying teams,high authority and efficiency to promote the anti-malfeasance work strength and progress,so as to realize the anti-corruption work from overwhelming posture to the final victory.The second part expounds the theoretical confusion and practical problems of lien measures.The theoretical dispute of lien is mainly the discussion of its legal nature.To correctly understand the nature of lien is the prerequisite for the standardized operation of lien.There are three main theories about the nature of lien measures,one is the theory of "an independent new power".one is the theory of "compulsory measures" and the other is the theory of "administrative and criminal dual nature".Starting from the three theories,this paper discusses the reasonableness and irrationality of each viewpoint,and makes a preliminary theoretical analysis on the nature of the lien measures.Nother theoretical argument facing the lien measure is whether it is a means of investigation,an enforcement measure to guarantee the operation of the procedure,or a mixture of the two,It is of great value to define the position of the lien measure in the supervision law.Through the narration of different viewpoints,this paper lays a foundation for the following analysis on the attribution of rights of lien measures.There are many arguments in theory and problems in practice.this paper analyzes the measures of lien,mainly based on the practical problems that may be encountered in the application situation,the application procedure,the procedure connection and the protection of the lienee's rights when the supervisory organs investigate cases with the measures of lien.To reveal the imperfection of the stipulation of lien measure.The third part analyzes the causes of the problems existing in the lien measures of supervisory organs.As a new investigation right of the supervisory committee,lien measures are confronted with the perplexity in theory and practice,which ultimately lies in the fact that there are still many deficiencies in the legal support and legal provisions of this new right.Firstly,the externalization of lien shows multiple power attributes,It is similar to the word meaning of administrative lien,its similarity with criminal coercive measure and its legalization of "practice of shuanggui" measures make the nature of lien deceptive.Secondly,lien measure is the only investigation measure that involves temporary restriction of personal freedom,It is essentially different from other investigation measures of the commission,such as interrogation and conversation.Its non-progressive and unitary legislative model without alternative makes the operating boundary of lien measures unclear.In addition,the provisions of the "supervision law"on lien measures are more generalized,increasing the uncertainty of its legal concept,This leads to too much discretionary power of supervisory organs in practice,which increases the practical difficulty of exercising or willfully or atrophying supervisory and investigation powers.The fourth part,tries to explore the consummation countermeasure of the lien measure.As a new power,the supervision law has made a series of provisions on the measures of lien on supervisory organs,However,there are still many problems in theoretical and practical activities,so it is necessary to clarify the nature of the lien measure,improve its application and operation,so as to realize the standardized operation of the lien measure.First of all,it should be made clear that the lien measure is a manifestation of the right of supervision,which belongs to the right of supervision in nature,and has two functions of investigation means and procedure operation guarantee measures in the ownership of power.Second,we should improve the relevant provisions on the application of lien measures,reasonably divide the period of lien according to the principle of proportionality,add other investigation measures with personal compulsion according to the criminal compulsory measures,and improve the investigation power of supervisory organs.Third,standardize the operation procedure of the lien measure,from the start of the measure to the removal of the measure,endow the supervisory organ with the emergency lien right under certain circumstances.It is necessary to standardize the procedure of case connection between supervisory organs and procuratorial organs,especially the issue of case jurisdiction and the application of evidence.Fourth,it is necessary to fully protect the personal rights of the person being retained and further improve the protection of the rights of the person being retained.For example,the right to obtain legal assistance from lawyers or legal practitioners in the entity,the right to request review,review and appeal in the procedure,and the right to file compensatory relief and compensatory protection such as state compensation,penalty deduction according to law,etc.Finally,the supervision mechanism of lien measures should be improved from two aspects:internal supervision organs and external supervision of the public.We should continue to improve the professional level of supervision workers,establish a professional and standardized supervision teamand provide talent guarantee for the lien measures to play their due function effect.At the same time,on the basis of the establishment of a professional supervision team,the law on the supervision team was formulated to achieve professional management and law-based supervision.On the other hand,it is necessary to clarify the legal authorization of regulatory documents with legal effect formulated by supervisory organs as soon as possible,so as to improve the transparency of supervisory activities and realize the openness of power operation,so that social supervision and public supervision can be truly implemented.In addition,we should give full play to the role of procuratorial organs as legal supervision organs,and supervise the supervision activities while protecting the rights and interests of the persons under investigation,especially the persons under lien,so as to promote their standardized operation. |
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