建構行刑銜接中的行政檢察監督機制

Constructing Administrative Procuratorial Supervision Mechanism in the Connection of Administrative Law and Criminal Law

我國傳統行刑銜接機制存在涵蓋範圍狹窄、銜接方式單一、銜接信息平台無法滿足“刑行”雙向銜接功能需求等問題。受到憲法“分工合作”原則的限制，承擔“行刑”銜接檢察監督職能的刑事檢察部門不能直接對行政違法行為進行檢察監督。黨的十八屆四中全會決議提出建構行政違法檢察監督機制的目的在於推動檢察職能從刑事領域延伸到行政違法領域，推動我國行刑一體化機制的完善。但行政違法行為檢察監督職能的內涵一直不明確，應將行刑銜接改革與行政違法行為檢察監督職能結合起來，推動行政檢察部門聚焦於“行刑銜接”的制度空間，克服現行“行刑銜接”機制的侷限性，監督在刑事犯罪中發現的行政違法行為，借助行政檢察職能全面修復行刑之間的制度漏洞。具體而言，行刑銜接中存在五種行政檢察監督部模式，其監督重點事項也各有不同。

In the resolution of the Fourth Plenary Session of the 18th CPC Central Committee, the Communist Party of China (CPC) put forward the judicial reform task of ''procuratorial supervision of administrative violations''. Since it overlaps with the reform of the national supervision system, the exploration of the reform of procuratorial supervision of administrative violations has been suspended. In the Opinions on Strengthening the Legal Supervision of Procuratorial Organs in the New Era issued by the Central Committee of the Communist Party of China in June 2021, the reform task of ''procuratorial supervision of administrative violations'' was put forward again. In order to implement the Opinions, the Supreme People's Procuratorate has promoted a new round of reform of procuratorial supervision over administrative illegal behaviors. However, the nature of procuratorial supervision over administrative violations is still vague. There are some problems in the coordination between administrative law and criminal law in China, such as narrow scope, single coordination mode, and the coordination information platform inconsistent with the requirements of the two-way linkage function in administrative law and criminal law. Being constrained by the principle of specialization in the Constitution, the criminal prosecution department, which undertakes the function of procuratorial supervision in the coordination between administrative law and criminal law, cannot directly supervise administrative violations. The resolution of the Fourth Plenary Session of the 18th CPC Central Committee proposes to construct a procuratorial supervision mechanism for administrative violations, aiming to promote the procuratorial organs to extend their functions from the criminal field to the administrative violations field and improve the integrated mechanism of the coordination between administrative law and criminal law in China. Therefore, the article points out that the reform of coordination between administrative law and criminal law should be linked with the reform of procuratorial supervision of administrative violations, and the administrative procuratorial supervision mechanism in coordination between administrative law and criminal law should be constructed. The administrative procuratorial department should focus on the system space of connection between administrative law and criminal law, overcome the limitations of the current ''administrative-criminal'' mechanism, supervise the administrative illegal acts found in criminal crimes, and comprehensively repair the system loopholes caused by such acts. This article focuses on five modes of administrative procuratorial supervision. The first supervision mode is the ''either-or'' mode in administrative law and criminal law. The second mode supervises the inclusive offence. The third mode is that when the procuratorate refuses to issue an arrest order, the criminal should still be subject to administrative punishment. The fourth mode is ''both'' model, that is, the actor should not only bear criminal responsibility, but also bear administrative responsibility. The last mode is ''related sanctions'', which means, after the principal offender is investigated for criminal responsibility, the procuratorial organ also needs to supervise whether the administrative violations related to the crime are also punished.