2018 年颁布实施的《监察法》是国家监察工作的优秀经验上升为制度，制度转化为法律的改革成果体现，也是我国反腐败工作法治化的重要里程碑。法律的生命在于实施，如何实现纪法贯通、法法衔接，是必须回答好的现实课题。因此，监察法与刑法之间衔接适用，是值得探讨的问题。监察法的监察对象与刑法职务犯罪主体既有内在一致性又有差异，无论是监察法的对象还是刑法职务犯罪主体，本质上都以公权力作为其实质性的内容。同时，监察法的对象是对刑法职务犯罪主体的进一步补充，监察人员的职务犯罪调查行为要遵循宪法的基本原则，刑法为职务犯罪的定罪处罚提供合法性依据，因而监察法与刑法具有互补性。但是以刑法为坐标来看“监察对象”，单位被排除在监察对象之外，民主党派，基层群众自治组织、公办机构中管理人员是否属于监察对象存有争议，以及国有企业、国有参股控股人员的认定存在不同认识。可见，在主体层面的问题是监察法与刑法的衔接首要解决的问题。

在厘清监察对象与刑法职务犯罪主体的衔接问题后，监察委员会的调查过程中能否对涉嫌职务犯罪的人员适用认罪认罚制度，随之成为应予关注的问题。首要的是认定监察对象的自首能否可以从轻或减轻处罚。依据《关于办理职务犯罪案件认定自首、立功等量刑情节若干问题的意见》，监察机关可以被解释为办案机关，若行为人被动到案并如实交代办案机关已经掌握的事实，不能作为自首予以认定；若被调查人的提供的线索在其到案前未被监察机关掌握，且在被调查人主动交待后而转为刑事犯罪调查的，可以以自首论。与此同时，虽然从现有法律规定来看，监察机关并非司法机关，监察法中的被留置对象性质与余罪自首中的“被采取强制措施的犯罪嫌疑人”也存在一定的差异，由此造成监察法适用余罪自首存在规则障碍，但是单纯根据留置的形式要件不具备而排除余罪自首的适用，同样会因机械性适用法律而带来明显的逻辑悖论。尽管法法衔接中对于认罪认罚从宽政策的运行存在现实障碍，但是监察委员会之下的职务犯罪调查适用认罪认罚制度具有必要性，不仅可以给职务犯罪嫌疑人带来利好，还可以节约司法资源，与认罪认罚制度的初衷是一致的。为畅通监察法与刑法的衔接，建议通过立法解释或司法解释的方式，将“监察机关”“监察人员”分别解释进“国家机关”“国家机关工作人员”范畴之中，对认罪认罚从宽的规定按宽严相济刑事政策作出激励性从宽解释，除此之外，通过刑法修正案将《刑法》中“国家工作人员”修改为“国家公职人员”，保持与监察对象的一致性；为落实宽严相济刑事政策与保持司法程序的一致性，可以增设“认罪认罚从宽”为刑法的基本原则，在监察对象主动认罪认罚原有从宽处罚的基础上进一步从宽处理，同时优化酌定减轻处罚的程序，由高级人民法院核准减轻处罚，以期解决法法衔接的问题，以推动反腐败工作规范化和法治化。

The “Supervision Law” promulgated and implemented in 2018 is a result of the country ’s excellent experience in supervision work, which has been transformed into a system, which has been transformed into a legal reform. It is also an important milestone in the legalization of China ’s anti-corruption work. The life of the law lies in its implementation. How to achieve discipline and law cohesion and connection between law and law is a realistic question that must be answered well. Therefore, the application of the connection between the supervision law and the criminal law is a question worth discussing. The supervisory objects of the Supervision Law are both internally consistent and different from the criminal law duty crime subject. Whether it is the supervisory law object or the criminal law duty crime subject, the public power is essentially its substantive content. At the same time, the object of the Supervision Law is to further supplement the main body of crimes in criminal law. The investigation of the duty crimes of supervisors should follow the basic principles of the Constitution. The Criminal Law provides legal basis for the conviction and punishment of duty crimes. . However, looking at the "supervision object" with the criminal law as the coordinate, the unit is excluded from the supervision object. There are disputes about whether the management personnel in the democratic parties, grassroots autonomous organizations, and public institutions are the supervision objects, as well as state-owned enterprises and state-owned shares holding personnel. There are different views on the identification of. It can be seen that the problem at the subject level is the primary solution to the connection between the supervision law and the criminal law.

After clarifying the connection between the supervisory object and the subject of criminal law duty crime, whether the confession and punishment system can be applied to the personnel suspected of duty crime during the investigation process of the supervisory committee has become a problem that should be paid attention to. The first thing is to determine whether the surrender of the object of supervision can be lightened or mitigated. According to the "Opinions on Several Issues Concerning Sentencing Circumstances Concerning Handling Crimes of Committing Crimes," the supervisory authority can be interpreted as a case-handling organ. ; If the clues provided by the respondent were not grasped by the supervisory authority before the case arrived, and after the respondent voluntarily confessed and turned into a criminal investigation, they may surrender themselves. At the same time, although judging from the existing legal provisions, the supervisory authority is not a judicial authority, there is also a certain difference between the nature of the object to be retained in the supervisory law and the "suspected criminal suspects" in the surrender surrender. There are rule obstacles to the application of the confession and punishment system in the Supervision Law, but excluding the application of surrender surrender simply based on the lack of formal requirements for liens also brings obvious logical paradoxes due to the mechanical application of laws. Although there are practical obstacles to the operation of the policy of leniency in guilty plea and punishment in the connection between law and law, the application of the guilty plea punishment system for the investigation of duty crimes under the supervisory committee is necessary, which can not only bring benefits to the suspects of duty crimes, but also save judicial resources , And the original intention of the confession and punishment system is consistent. In order to unblock the connection between the Supervision Law and the Criminal Law, it is recommended that the "supervisory authority" and "supervisory staff" be interpreted into the categories of "state organ" and "state organ staff" through legislative interpretation or judicial interpretation, and the punishment for guilty plea is lenient. In accordance with the criminal policy of leniency and strictness, we provide an lenient and lenient interpretation. In addition, through amendments to the Criminal Law, the "national staff" in the "Criminal Law" is changed to "national public officials" to maintain consistency with the targets of supervision; Implementing the criminal policy of leniency and strictness and maintaining the consistency of the judicial process can add "confess punishment and leniency" as the basic principle of the criminal law, further leniency on the basis of the original leniency punishment of the confession punishment and punishment of the surveillance object, and at the same time optimize the discretion The procedure for mitigating punishment shall be approved by the Higher People ’s Court with a view to solving the problem of convergence of laws and laws to promote the standardization and rule of law of anti-corruption work.