涉诉信访法治化:现实困境与路径选择  

Legalization of Litigation-involved Petitions:Practical Dilemma and Path Selection

作　　者：杜睿哲[1] 

机构地区：[1]西北师范大学法学院,甘肃兰州730070

出　　处：《西北师大学报（社会科学版）》2017年第4期112-120,共9页Journal of Northwest Normal University(Social Sciences)

基　　金：国家社会科学基金一般项目"甘青宁民族地区涉诉信访问题实证研究"(14BMZ007)

摘　　要：涉诉信访是与行政信访相对应的概念,是基于公民对国家司法权力的民主参与和监督而享有的权利,具有民意表达、公权力监督和权利救济的功能。公权力监督是涉诉信访的制度基础,权利救济是公民对司法权力监督的副产品。但改革开放以来,随着涉诉信访案件数量不断增长,权利救济的功能不断放大,形成了权利救济的司法—信访"双轨制"。由于立法滞后、机构设置多元化、诉访合一、司法程序与行政程序交叉渗透等因素的影响,涉诉信访的治理基本上在人治轨道上运行,给我国社会治理和法治建设带来了严重的危害。为此,应将涉诉信访机构从众多普通信访机构中分离,其职能由具体实施法律监督职能的人民检察院统一行使;修改诉讼法,使检察监督与涉诉信访程序衔接、统一;从不同层次彻底实行诉访分离,制定检察机关处理涉诉信访案件的正当程序。从这些方面进行改革,以期实现涉诉信访法治化。Litigation-involved petitions, in contrast to administrative petitions, are based upon the citizens＇ right to participate in and supervise the exercise of judicial powers, and may function as a means for the public to express their opinions, and supervise public powers and remedy their violated rights. The right of the public to supervise public powers is the institutional foundation of litigation-involved petitions while the chance to remedy their rights is a byproduct of the supervision. However, since opening up in China, the number of litigation-involved petitions has kept growing up and their functions as a remedy of rights have been blown up. The corresponding consequence is a dual system with both litigations and petitions coexisting as remedies. Till now, due to legislative hysteresis, the diversity of competent authorities, the integration of litigations and petitions and the mutual infiltration of judicial proceedings with executive proceedings, the regulation of litigation-involved petitions has basically been under ＂rule of man＂, which has inflicted severe harm on China＇s social governance and its efforts in fostering the ＂rule of law＂. Hence, it is suggested that litigation-involved petition authorities be divorced from those petition authorities for general purposes, and be put into the People＇s Procuratorate which is entitled to supervise the administration of law. The procedural laws should be revised to ensure the seamless integration of procedures for procuratorial supervision and litigation-involved petitions. Litigations and petitions should be completely separated at all levels, and reforms should be introduced to facilitate the legalization of litigation-involved petitions, such as an effort to establish due processes for the procuratorate to deal with litigation-involved petitions.

关 键 词：涉诉信访 法治化 诉访分离 正当程序 

分 类 号：DF7[政治法律—诉讼法学]