刑事诉讼指定管辖制度之完善
龙宗智刑事诉讼指定管辖制度之完善
System of Designated Jurisdiction in Criminal Proceeding: Its Improvement
期刊名称：《法学研究》
期刊年份：
作者：龙宗智
单位：四川大学法学院
中文关键词：刑事诉讼;指定管辖;程序法定;制度完善
英文关键词：criminal proceeding;designated jurisdiction;legal proceedings;improvement of system
中文摘要：
刑事诉讼中的指定管辖，其目的是保障司法公正，实践中发挥了积极作用，但也有一定弊端，如适用随意性较大，指定侦查管辖于法无据，公、检、法在指定管辖上不能有效衔接，公民的管辖异议权与指定管辖申请权不受尊重等。存在的问题与我国特有的分工负责，互相配合，互相制约的制度结构，以及司法权集体行使的特殊形式有关。改革完善该制度，在模式设定上，仍应以审判为基点，同时明确侦查阶段的指定管辖并允许检察机关监督。审判中的指定管辖应由检察机关提出，由人民法院审查决定。在指导思想上，坚持程序法定原则，慎重适用指定管辖；坚持管辖便利原则，指定地点应当方便办案。在制度完善方面，需要明确指定管辖的适用范围；明确指定管辖的相关主体、考量因素及决定程序；合理设置指定管辖的具体程序，确认公民的管辖异议权与管辖申请权并予以保障。
英文摘要：
Designated jurisdiction is the intentional change of the order of jurisdiction due to the particularity of individual cases. Aiming at safeguarding judicial justice, it has brought about positive effects in practice. However, there are also some defects in this system, such as the casual application of designated jurisdiction, the lack of effective connection between the investigative, procuratorial and trial organizations, the disrespect for the right of objection to jurisdiction, etc. Imperfection of the system weakens the function of judicial review, hinders people's lawful rights, violates legal principles, increases litigious cost, and affects litigious efficiency. Such problems are related to the unique feature of our existing institutional structure of dividing responsibility for their own work, coordinating their efforts and checking each other, and the special form of the collective exercise of judicial power. Moreover, the inquisitorial litigious mode breaks the balance between national power and personal rights, which causes designated jurisdiction to become power-oriented, administrative and punishment-oriented. To reform and improve this system, a mode evolving around trial should still be applied. The pre-trial designated jurisdiction should be clarified and the procuratorial organizations should be allowed to supervise such designation. Designated jurisdiction during trial should be forwarded by the procuratorial organizations and determined by the people's courts. As for the guiding thought, we should adhere to legal proceedings and be cautious in the application of designated jurisdiction. We should also adhere to the principle of convenience, that is, organizations should be designated for the convenience of case handling. As for the perfection of the system, the applicative scope of the designated jurisdiction should be defined, and the subjects, influencing factors of designated jurisdiction and the procedure to decide it should be clarified. Besides, proper and concrete procedures for the application of designated jurisdiction should be established, and the right of objection to jurisdiction should be acknowledged and guaranteed.
全文阅读： 点击下载
