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关于自侦案件拘留权的行使,立法规定检察机关行使决定权,而由公安机关行使执行权。但现实中公安机关只是开具拘留证,并由检察机关代为执行。而从理论和实践出发,公安机关执行拘留,既无法对检察机关形成监督制约,也无法提升拘留效率。纵观国外拘留权配置,强调对侦查部门的制约是重点,且一般强调检察机关在自行侦查中对警察的指挥以增侦查效率。我国拘留权配置的优化路径也应从制约与协作出发。从制约出发,我国自侦案件拘留权的配置中应当强化侦查部门的对拘留权的事后监督和加强被拘留人的私权对拘留权的制约,而这种监督制约应从程序性保障方面着手。
With regard to the exercise of the right of arrest in self-investigation cases, the procuratorial organs shall exercise the power of decision in the procuratorial organs and the enforcement powers of public security organs. However, in reality, the public security organ only issues a detention card and executes it on behalf of the procuratorial organ. However, starting from the theory and practice, when performing public security organs’ detention, neither the supervision and control of procuratorial organs nor the efficiency of detention can be enhanced. Looking at the allocation of foreign detention rights, it is emphasized that the restriction on the investigation departments is the key point, and generally emphasizes the prosecution’s command over the police in self-detection to increase the efficiency of investigation. The optimal path of configuration of our country’s right of detention should also start from the restriction and cooperation. From the constraints, the configuration of detention for self-detection cases in our country should strengthen the post-surveillance of the right of arrest in the investigation department and the restriction on the right of detention in the private right of detainees. Such supervision and restriction should proceed from procedural guarantees.