異地用檢的憲法爭議及反思

異地用檢的憲法爭議有二：一是上級檢察院統一調用檢察官行為是否合憲；二是被調用檢察官是否需要經過調入地人大常委會任命。《檢察院組織法》授予上級檢察院統一調用職權；實乃檢察院上下級之間領導關係的一種具體展開；其合憲性定然無疑。檢察官在身份上具有國家性和地方性。前者表現為檢察官的遴選和任免只能依據全國性法律；檢察官必須堅持社會整體利益至上；後者是指各地檢察官的遴選與任免屬地方事務；各地檢察官可以且應當監督地方性法規的實施；以切實維護地方利益。人大及其常委會乃是檢察官任免的唯一主體。“由上調下”的異地用檢同樣須經人大任免；因為領導關係代替不了產生方式。不宜將地方人大任免檢察官的行為定性為憲法委託；它是一種旨在維護地方利益的職權行為。

The constitutional disputes in the system of cross-jurisdictional prosecution involve two main issues: firstly, whether the behavior of superior procuratorates in unilaterally calling upon prosecutors is constitutional, and secondly, whether the called-upon prosecutors need to be appointed by the standing committee of the people's congress of the jurisdiction into which they are called. The Procuratorate Organization Law grants superior procuratorates the authority to unify the call-up of prosecutors, which is a specific manifestation of the leadership relationship between different levels of the procuratorate, and its constitutionality is undoubtedly clear. Prosecutors possess a dual nature in terms of identity, embodying both national and local attributes. The former means that the selection and appointment/removal of prosecutors can only be based on national laws, and prosecutors must uphold the supreme interests of the entire society; the latter implies that the selection and appointment/removal of local prosecutors are local affairs, and local prosecutors can and should oversee the implementation of local regulations to genuinely protect local interests. The people's congress and its standing committee are the sole entities responsible for the appointment and removal of prosecutors. The cross-jurisdictional use of prosecutors“from the top down”also requires appointment and removal by the people's congress because the leadership relationship does not replace the method of creation. It is inappropriate to characterize the act of local people's congresses in appointing and removing prosecutors as a constitutional delegation; it is an act of authority aimed at protecting local interests.