检察机关侦察权的自我束缚与外部制约

　  【内容提要】产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于监视者入行监视的题目。检察机关的侦察权存在被滥用的可能性，突出反应在非法取证行径以及与此相联络的强迫措施的滥用两个方面。检察机关当然树立了自我束缚机制，但这不足以有效避免侦察权的背法行使；检察机关侦察权也遭到外部的监视制约，但外部的监视制约机制因种种原由功能弱化。完美以及强化检察机关侦察权的自我束缚以及外部制约机制，基本路径是优化检察机关在自侦案件侦察进程中的权利配置，确立并严格实行以检察机关承担证据正当性证实责任为特点的非法证据排除了规则。

　　【关键词】检察机关侦察权滥用侦察监视权利制约

　　[Abstract]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.

　　[Key words]abusing investigation power；supervision of investigation；the prosecutorial organization；the restriction of power

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