1. There are gaps and loopholes in the legislation of administrative law enforcement supervision;
The existing laws only stipulate that procuratorial organs are legal supervision organs in a general sense, and there is no special provision on administrative law enforcement supervision, which lacks the rigidity and operability it deserves. Therefore, administrative law enforcement supervision is weaker than judicial litigation supervision such as investigation supervision and filing supervision. Due to the unclear or unclear definition of the scope, content, mode and method of administrative law enforcement supervision by procuratorial organs, there are many blind spots and gaps in supervision. Even if there is supervision according to law, due to the lack of procedural and substantive provisions for the specific implementation of supervision, the rigidity of supervision is insufficient and the measures are ineffective, so we can only fall into a helpless embarrassing situation.
2, the administrative law enforcement departments to accept supervision consciousness is not strong.
Due to the mandatory administrative power, administrative law enforcement personnel are often used to supervising others and lack the consciousness of being supervised. Some supervised people often say "no" to administrative law enforcement supervision for various reasons and ways from their own interests. First, it is considered that the supervision of law enforcement by procuratorial organs is unnecessary and useless, and they do not agree with the supervision opinions and suggestions of procuratorial organs, or shirk or delay implementation; Second, it is considered that the supervision of law enforcement by procuratorial organs is "finding fault" and "finding fault randomly", and it is difficult to ignore and refuse to implement the supervision opinions and suggestions of procuratorial organs. There are many similar problems. From the above two points, we can see the difficulty of administrative law enforcement supervision.
3, the procuratorial organs of administrative law enforcement supervision.
First, as a supervisor, the procuratorial organ has been unwilling to supervise administrative law enforcement because of its own system restrictions. Under the current two-level leadership system of procuratorial organs, procuratorial organs and local administrative organs are dependent on each other in terms of institutions, personnel and funds. The procuratorial organ located in the administrative area actually becomes a "local procuratorial organ" and is in the position of a law enforcement department under the local government. Second, the current situation of procuratorial organs leads to poor supervision. Procuratorial organs are the legal supervision organs of the country, which require higher quality and working environment of prosecutors. However, at present, the procuratorial organs have few personnel, heavy tasks and poor handling conditions, which is unsustainable, leading to the supervision of administrative law enforcement by procuratorial organs becoming a mere formality. Third, it is suspected that the procuratorial organs will take the lead in convening administrative law enforcement organs to establish a convergence mechanism, and it is difficult to really implement the convergence measures. Although procuratorial organs are in the lofty position of "one government, two houses" in China's state institutions, due to the special national conditions, their actual status is different, and their influence and binding force on administrative power are extremely limited, which affects the supervision function.
Two, improve the supervision mechanism of administrative law enforcement suggestions
1, to ensure information sharing between administrative law enforcement organs and procuratorial organs.
Through extensive publicity by the news media, we will guide the people to actively participate in supervision and stimulate the enthusiasm for reporting. Procuratorial organs should give full play to the function of legal supervision, take the initiative to move the supervision barrier forward, improve the supervision mode, and take effective measures in time to prevent problems in supervision; In terms of supervision, we should strictly investigate suspected crimes such as abusing power for personal gain and perverting the law in administrative law enforcement, so as to treat both the symptoms and root causes and combat prevention; Procuratorial organs should take the initiative to maintain regular working contact with administrative law enforcement organs and public security organs, establish a sound information sharing mechanism, and ensure timely understanding and mastery of the investigation and handling of economic crime cases. It is necessary to establish a scientific work management mechanism and smooth supervision channels.
2, clear the convergence of administrative law enforcement and criminal law enforcement evidence.
In criminal proceedings, in the process of transferring criminal cases by administrative law enforcement organs, and in the process of collecting evidence from administrative organs by judicial organs in the process of administrative law enforcement, the evidence collected and retrieved by judicial organs from administrative organs can be converted into criminal evidence after examination. This is in line with the provisions of the Criminal Procedure Law on criminal evidence. Therefore, evidence materials collected by administrative law enforcement organs, which are handed over to judicial organs according to law or retrieved by judicial organs, should be used as criminal evidence as long as they are verified by judicial organs.
3. Explore and improve the supervision system of administrative law enforcement.
(1) Improve the joint meeting system of investigation and supervision departments, the People's Bank of China and self-investigation departments. At present, the joint meeting is only attended by the investigation and supervision department. The participation of the People's Bank of China and the self-investigation department can improve the effectiveness of the joint meeting system, deal with the crime of dereliction of duty behind replacing punishment with punishment in time, and improve the pertinence of prevention work. This is "conducive to cracking down on crime and realizing the social defense function of criminal law." Procuratorial organs have a unified review system for filing, withdrawing and closing cases to prevent public security organs from substituting punishment for punishment.
(2) Improve the active system of procuratorial organs to supervise administrative law enforcement. The legal supervision of procuratorial organs is external supervision, which can not interfere with the process of administrative behavior, but can only retrieve the files. At the same time, if the administrative law enforcement organs only deal with the rationality of the case and there is no violation of the law, the procuratorial organs may not start the transfer supervision procedure. According to this principle, laws and regulations should give procuratorial organs the right to investigate the results of administrative cases, the right to inquire about the reasons for non-transfer and the right to make procuratorial suggestions if they violate the law. This right of investigation is an integral part of the right of supervision, which exists at the same time as the right of supervision. The specific investigation measures of procuratorial organs, such as the right to investigate files, can ensure that procuratorial organs can know in time whether law enforcement organs have mastered criminal clues.
(3) Improve the accountability system for refusing to hand over criminal cases. If the procuratorial organ believes that the administrative law enforcement organ has mastered the criminal clues that need to be handed over and notified the administrative law enforcement organ to hand them over, the administrative law enforcement organ must hand them over; Refuse to hand over, you can pursue the legal responsibility of the responsible personnel. At the same time, the public security organ shall file a case for investigation of the criminal clues handed over by the procuratorial organs to the administrative law enforcement organs. If the public security organ refuses to file a case or delays after filing a case, and fails to perform its investigation duties, the procuratorial organ may investigate on its own. If the administrative law enforcement organ disagrees with the decision of the public security organ not to accept the transferred case or not to file a case, it shall advise the procuratorial organ to supervise the case, otherwise it shall bear corresponding responsibilities.
(4) Improve the system of early intervention in case investigation. For major accidents, major incidents and major criminal cases that may involve crimes, the relevant functional departments should promptly notify the procuratorial organs to intervene in the investigation while investigating and handling them, so as to prevent the loss of evidence and have the right to investigate the crime of dereliction of duty. Clearly stipulate the case clue transfer system. Relevant clues about possible crimes discovered by various departments must be transferred to the procuratorial organs for filing within the specified time, and the case handling shall be notified and fed back to the transfer organs. Make full use of the right to know, the right to procuratorial suggestions, the system of public security organs intervening and guiding investigations in advance, and explore new forms of supervision.
(5) Improve the constantly improving legal system. Although Article 22 of China's Administrative Punishment Law clearly stipulates: "If an illegal act constitutes a crime, the administrative organ must transfer the case to the judicial organ and pursue criminal responsibility according to law." The Criminal Procedure Law also stipulates the supervision system of procuratorial organs over the filing of cases by public security organs, but it does not involve the supervision of cases transferred by other administrative law enforcement organs. There is still a lack of operational provisions on the specific issues of transfer, but in practice, transfer is very arbitrary. In order to better coordinate the relationship between administrative organs and judicial organs in transfer and adhere to the principle of criminal priority, the transfer procedure should be legalized, such as what are the specific conditions for transfer, how to transfer, the time limit for transfer, the transfer organ, the legal responsibility for not transferring and accepting the transfer according to law, etc., so as to establish a systematic and complete case transfer system and standardize the transfer.
4. Strengthen quality construction and improve legal supervision ability.
As a legal supervision organ, whether procuratorial organs can play a role in the construction of socialist market economy depends on the team. Only when the procuratorial team has high quality, strong legal supervision ability and high level can the legal supervision function of procuratorial organs be reflected, otherwise its historical mission cannot be realized. Therefore, it is particularly important to strengthen the construction of procuratorial team and improve the level of legal supervision ability. The first is to improve the political quality of the procuratorial team. Adhere to the principle of "establishing procuratorial organs for the public and enforcing laws for the people", and enhance the overall awareness, sense of responsibility and sense of hardship of procuratorial police officers. It is necessary to strengthen education management, improve the procedural system, strengthen supervision and control, and strictly investigate the responsibility, so that police officers can consciously abide by professional ethics and procuratorial discipline and always be loyal to facts, laws and the interests of the party and the people. The second is to improve the professional quality of procuratorial police. The procuratorial business involves many fields of knowledge, requires high skills and is highly specialized in laws and regulations. Therefore, it is necessary to guide police officers to seriously study all aspects of knowledge and strengthen knowledge reserves to meet the needs of legal supervision. We should actively carry out on-the-job training and skills training, sum up experiences and lessons, explore work rules, and strengthen theoretical research, so that every police officer can become an expert in legal supervision.