论我国指定居所监视居住异化问题

On the Alienation of Residential Surveillance at a Designated Location in China

摘要: 当前我国《刑事诉讼法》(以下简称“《刑诉法》”)面临第四次修改，卞建林、黄永等著名学者先后提出废除指定居所监视居住(以下简称“指居”)制度的观点，重新引发了学界对于指居制度存废的热议，而实际上指居作为半羁押性强制措施，具有完善刑事强制措施体系等独特的价值与功能，只是受错误的办案观念的影响及权力难以制约的纵容，指居措施在实践中呈现出异化为侦查、羁押措施的倾向。因此有必要探究指居异化问题的表现、成因等要素，并通过由检察机关行使审批权、加强权力制约、明确未成年人不应当适用指居等措施规范指居制度，以使得指居措施发挥其应有作用。

Abstract: At present, China’s Criminal Procedure Law (hereinafter referred to as the “Criminal Procedure Law”) is facing the fourth revision, and famous scholars such as Jianlin Bian and Yong Huang have successively put forward the idea of abolishing the system of residential surveillance at a designated location (hereinafter referred to as “residential surveillance”), which has once again aroused heated discussions in academic circles about the existence and abolition of the residential placement system. However, as a semi-custodial compulsory measure, the finger residence has unique values and functions such as improving the system of criminal compulsory measures, but it is only affected by the erroneous concept of handling cases and the connivance that power is difficult to restrict, and in practice, the residence pointing measures show a tendency to be alienated into investigation and detention measures. Therefore, it is necessary to explore the manifestations and causes of the problem of alienation of residence, and standardize the system of residence by means of the exercise of examination and approval power by the procuratorial organs, strengthening the restraint of power, and clarifying that minors should not be subject to measures such as residence designation, so that the residence indication measures can play their due role.