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在当前历史时期,职务犯罪已经成为有可能毁灭我国法治建设成果的最重要的犯罪形式;我国刑法对职务犯罪的打击能力直接关系到民众对于法治的信仰和信心。1996年修改的《刑事诉讼法》将完整的职务犯罪侦查权赋予检察机关,然而此后不久,六部委联合下发的一纸《关于刑事诉讼法实施中若干问题的规定》(以下简称《规定》),却将完整的职务犯罪侦查权一分为二,由此造成了司法实践中职务犯罪侦查管辖混乱、职务犯罪打击能力下降的严重后果。文章的研究表明,六部委的《规定》不仅可能内容错误,而且本身亦可能违宪。立法的真正意图应该得到还原,公安机关和检察机关的侦查权有其不同的职能构造,职务犯罪侦查权应该赋予检察机关统一行使。这不仅是职务犯罪侦查权走出困境的上善之策,而且是遵守国际公约的应然选择。
In the current historical period, job-related crime has become the most important form of crime that is likely to destroy the fruits of the rule of law in our country. The criminal law’s ability to crack down on duty-related crimes directly affects people’s beliefs and confidence in the rule of law. The Code of Criminal Procedure, amended in 1996, gave the prosecutorial authority a complete investigative power over job-related crimes. However, soon afterwards, a piece of the “Provisions Concerning the Implementation of the Criminal Procedure Law” promulgated by six ministries (hereinafter referred to as the “Provisions” ), It divides the integrity of the duty to investigate crime into two parts, which has resulted in the serious consequences of the chaotic management of the duty crime investigation in judicial practice and the reduction of the ability to crack down on duty crimes. The study of the article shows that the “regulations” of the six ministries and commissions are not only wrong in content but also unconstitutional in themselves. The true intention of the legislation should be restored. The investigative powers of the public security organs and the procuratorial organs have different functions and structures. The power of investigation of the duty crime should be given unified exercise by the procuratorial organs. This is not only a good way to get out of the dilemma of the duty of investigation of job crimes, but also an appropriate choice to abide by international conventions.