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警务督察论

Research on the Police Inspector System

作者:高刘阳
  • 学号
    2014******
  • 学位
    博士
  • 电子邮箱
    lyn******com
  • 答辩日期
    2018.06.10
  • 导师
    余凌云
  • 学科名
    法学
  • 页码
    163
  • 保密级别
    公开
  • 培养单位
    066 法学院
  • 中文关键词
    警务督察,警察权,公民权,执法规范化,内部监督
  • 英文关键词
    Inspector of Police, Police Power, Civil Rights, Standardization of Law Enforcement, Internal Supervision

摘要

警察权以保卫社会秩序和社会福利为最大福祉,从诞生起就具有暴力特征,并且以国家强制力为后盾保障实施。这一事实虽然是保卫社会及公民法益的需要,但也不可避免的会衍生出权力被滥用的可能性。因此,警察权作为对公民合法权益具有潜在威胁的公权力,就需要通过外部和内部的监督,来控制权力的侵略和扩张性,确保警察权只能在法律授权范围内,按照法律规定的程序和要求行使。而在这些监督手段中,警务督察以自我监督和自我纠正为特点,是与警察行使职权联系最为紧密、时效性最强的一种内部监督制度。但是,在实际运行过程中,警务督察制度的内部矛盾逐渐凸显,其存在意义也逐渐被偏离监督目标的实践状态所弱化。因此,对警务督察制度进行全面的分析,检验现行制度设计是否能够满足功能实现的需要,才能够找到问题的症结,进一步对警务督察制度进行完善与优化。根据我国和域外的制度对比,可以发现警务督察制度带有鲜明的中国本土特色,现场督察和单设监督警种的独有特征,为警务督察带来警察权力动态校准和即时保障公民合法权益的制度优势,而这两点优势也是警务督察在公安内部监督体制中存在的必要性。在对原始功能和功能转变进行梳理的基础上,本文以制度目标为衡量标准,认为警务督察是以保护公民权为主导功能的内部监督制度。从程序上看,现行警务督察制度在程序上存在着两个严重的漏洞,其一是公民向督察部门提出的投诉不能必然得到答复,其二是公民无权对督察部门的决定进行行政复议或者诉讼,因此从总体上看,警务督察对公民权利的程序保障是不够的。此外,在警察的角度,由于督察部门的部分决定、建议与行政措施等,对警察权益将产生直接影响,因此警务督察制度也应突破特别权力关系的桎梏,为警察群体预留更大的救济空间,提供立场更加客观的救济机构,以及更加重视警察职业特点的救济方式。因此,基于对我国警务督察制度的分析,目前该制度主要存在督察机构独立性不足、与其它内部监督机构分工不明、程序规则模糊以及救济机制运行乏力等四个主要问题。在对问题的成因进行分析的基础上,本文根据我国实践与域外经验,从影响功能实现的可能因素入手,认为在国家监察体制改革和公安执法规范化建设不断深化的背景下,警务督察制度亟需厘清自身定位,在监督警察权的同时,强化对公民和警察的双向救济,从而转变为一种警民纠纷的即时解决机制。

Police power is born to protect the social order and social welfare and it is backed up by the coercive power of state to guarantee the implementation. Although it is designed for the interests of citizens, but it may also give rise to the possibility of abuse of the police power. Therefore, as part of the government power with an aggressive and expansionist nature, police power should be supervised externally and internally as a potential threat to citizens ' legitimate rights and interests so that it can only be exercised in accordance with the procedures and requirements prescribed by law. Among these monitoring tools, police inspector system is the one which is most closely associated with police power and it is a unique internal oversight system of public security organs characterized by self-monitoring and self-correcting.Police inspector system is originated in China to solve problems in police practice in the early 1990s. It was first introduced as an internal oversight system with dynamic monitoring and rapid response capacity in the People's Police Law in 1995. However, the contradiction of the system slowly emerged and its meaning has gradually weakened by deviation from the objectives of supervision practice. Therefore, in order to find the crux of the issue and to improve the system, it is critical to conduct a comprehensive analysis of police inspection system and find out whether the system is able to meet the need for the implementation of its function.The United Kingdom and the United States have all attached significant importance to the internal oversight of police agencies. Now they mainly accomplish the goal through the supervision hierarchy model and in response to the public questions of "be your own judges", the relatively independent oversight bodies have gradually emerged in parallel. Foreign police internal oversight system has improved in a more convenient, independent and professional way and it is worthy of our reference in the perfection of the police inspector system, which contains the protection of the citizens ' rights and the improvement of the complaints handling procedures, as well as the emphasis of the relief rights of both parties.According to the comparison of the systems in China and the other countries, it turns out that the police inspector system has some distinctive local characteristics of China. With the advantages of controlling the police power by dynamic calibration and of protecting the legitimate rights and interests of citizens simultaneously, it is no doubt that the police inspector system has its unique value in the public security internal supervision system. Based on sorting out the changes of its original functions, this paper takes the institutional goals as the measurement standard, and believes that the police inspector system is an internal supervision system that takes the protection of the legitimate rights of citizens as the leading function.After clarifying the functions of the system, this paper uses the function as an evaluation criterion. While confirming the effectiveness of the police supervision, it is found that many predicaments exist in the system as well. As for the aspect of responsibilities, because of the limited police human resource, it is not possible for the police inspector departments to solve all the problems of police misconduct in the public security system by itself. Therefore, the police inspector department needs to make its position clear enough to strengthen the cooperation with other departments. From the present situation of the internal supervision system at public security organs, the police inspector departments have some coordination problems with other internal oversight branches such as the discipline inspection and supervision departments, the complaint letters and calls departments and the legal affair departments. Besides, the expansion of its responsibilities for the police inspector system has blurred the most core role of it—The on-site inspection of the police action with the mode of dynamic monitoring.In the procedure’s aspect, the current regulation of the police inspector system has two serious vulnerabilities, one of which is that the citizen could not necessarily be informed of the conclusion of the cases that should be handled by the police inspector departments. The other is that citizens are lack of right to apply for the administrative review of the decision of the police inspector departments, not to mention the right to bring a lawsuit. Therefore, the procedural safeguards of the civil rights are not enough in the police inspector system. In addition, from the police’s perspective, since the decisions, recommendations and administrative measures will have a direct impact on the police's rights and interests so that the police inspector system should break through the shackles of the special power relation. What’s more, it should also provide more relief space while setting up relief agencies with a neutral position, and place greater emphasis on the relief approachs which accords to the police occupational characteristic for the police group.Based on the analysis of police inspector system in China, four key issues have turned out to be essential to the existing system, which are the lack of independence of the departments, the unclear division of labor with other internal oversight bodies, the fuzziness of the procedural rules and the weakness of the relief mechanism. Therefore, in the background of deepening reform of the state supervision system and the standardization of law enforcement of the public security department, this paper believes that the police inspector system needs to clarify its position starting from reevaluating its core values, and turns into an immediate dispute settlement mechanism for police and citizens to supervise the police power while strengthening the two-way remedy for citizens and the police at the same time.