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A Study On The Disposition Of The Criminal Power Of Chinese Police

Posted on:2012-12-29Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y LiFull Text:PDF
GTID:1116330368480312Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The Criminal procedure law itself is a system to assign power to different subjects in the procedure--specialized state organs, in order to control the power and guarantee the efficient functioning of the power. The criminal power of the police is the concrete manifestation of the police's power in criminal procedure, whose disposition directly determines the whole disposition of the power in criminal procedure, and thus makes a great impact on the basic structure and functioning of the law. Starting with the fundamental theory on the criminal power of the police and a complete summary of the main problems in its operation in China as well as the causes in law, the paper, based on the overall background and practice, tries to clarify the stance and principles in the disposition, aiming at providing an operable system in China. According to the logic of proposing the problem, analyzing the problem and solving the problem, the paper probes into the relevant issues in the disposition of the power and tries to establish a comparatively mature basic structure for it.The paper consists of five parts except the introduction and summary.After a presentation of the situation and trend of the study in the academia, the introduction of the paper indicates that the current study with the distinct feature of being text-oriented is idealized and does not pay enough attention to the practical problems in China, resulting in the romantic and unrealistic design of the progress towards the rule of law for the criminal power of the police and a departure from the period of social transformation in China, which contributes to the phenomenon of"practice away from theory; theory against practice"The introduction emphasizes that the study should not stick to the analysis of the normalization of the law articles and a rational construction of the system based only on speculative reasons, or else the painstakingly designed perfect system would be put on the shelf in practice. Besides, there is also a summary of the main problems the paper deals with as well as the basic research methodology it adopts.Chapter one demonstrates the fundamental theory on the criminal power of the police, which specifies the internal meanings and the external qualities of the basic categories associated with the disposition of the criminal power of the police. It points out that the criminal power of the police is the concrete manifestation of the police's power in criminal procedure, which consists of the power of initiating procedure, criminal investigation and criminal compulsion. The properties of the criminal power of the police determine the way it is distributed, operated and controlled. Under the context of the relationship between civil society and political state, the paper analyzes the properties of the criminal power of the police and draws the conclusion that legally speaking, the criminal power of the police belongs to the executive power, which, however, has an increasingly apparent judicial tendency in the long practice of the power. On the basis of its sources, the criminal power of the police falls into five modes, and the mode that the criminal power reflects in law should accomplish its dual goals of crime control and human rights protection, which is associated with the degree of the restriction and deprivation of civil rights. Different from the stands and principles in the disposition of the power in China mentioned in the following text, the rationale for the disposition should be some basic concepts or factors that play a foundation role and of universal meanings in the whole world, of which the concept of identity emphasizes that the criminal power of the police is the concrete manifestation of the state's power in criminal procedure, whose disposition have to meet the legitimacy of power. Rather than a pure technical design, the disposition of the criminal power of the police bears many values. A rational theory of the power based only on logical analysis may not be put into practice. Therefore, the specific time characteristics, history, culture, constitutionalism, material and rules as well as the experience and lessons from other nations should all be taken into account when disposing the criminal power of the police.Chapter two is for the analysis of the status quo of the disposition of the criminal power for the police in China. The scheme for the disposition has been fixed in the legislation, but it can only be verified through practice and reflected by the performance of the power. Thus, the perspective for this chapter is put on practice to make an overall investigation on the performance of the power. In accordance with the forms of expression, the problems of the power in its operation have been summarized as "Offside","Dislocate" and "Defaulted". After a review of the present regulations concerned, the paper concluded that distorted structure, inappropriate standard, missing means and wild operations are the main factors contributing to the troubled operation of the power in China.Chapter three illustrates the stance and principles in the disposition of the power. From a macro view of the world, the paper pays close attention to the trend of globalization in criminal procedure and tries to analyze the possible effects it may bring to the disposition in China. Under the specific time and space in social transition in China, the problems are much more sophisticated. If the soaring number of crimes and the deteriorating circumstances were not properly handled, we would definitely face the grave social disorder, so the criminal power of the police must be enhanced reasonably and moderately in legislation. Meanwhile, with the shift from being survival-oriented to development-oriented, the members of the society have much higher demand levels. The disposition of the criminal power for the police in China has to face the difficult tradeoff between order and freedom. After a fine analysis of the due process in the Common Law System and the crime control in the Civil Law System, the paper proposes that the hierarchy of values should be stressed when disposing the criminal power of the police, especially in the transitional period of China. Taking bounded rationality as the premise, we should stand our ground to establish a transitional system.To dispose the power in a diverse way according to the gravity of the crime. From the above analysis, we may conclude the principles for the disposition as being statutory, proportional and practical.Chapter four elaborates on the position of the criminal power of the police in the criminal procedure in China, which focuses on its structural position in the national power system in the criminal proceedings, namely the relationship with other national power. From the relation locating analysis, the role that judicial and procuratorial organs play in the running of the power becomes clearer. Ideal modes should be pursued by us, but in face of a series of dilemmas, we need to consider establishing a feasible transitional system. The chapter expands on these two levels, too. In face of the insufficient constitutional protection of the rights of citizens, especially the suspects, the lack of neutrality and authority of judicial power, the contradiction between the establishment of the principle of judicial review and the structure of criminal procedure in China, as well as the possible conflicts between jurisdiction and procuratorial powers from the principle, it is not necessarily wise to completely transplant the judicial review of the western countries. The key lies in the selection of the breakthrough point. There are two points available, of which one is to satisfy the imminent needs, the other is to first reform the part where there are favorable conditions. The relationship between the police and the procuratorate should be adjusted technically under the current constitutionalism in China. The specific scheme should correspond to the position of procuratorial organs in our Constitution and be established on the objective duty of the prosecution. The on and off dialectical relationship between the police and the procuratorate in the two law systems constitute the core of the relationship, which enlightens us a great deal. A moderate on and off relationship may be the most appropriate solution. The main role of the police in the criminal investigation should be maintained, while the mode of investigation guided by the procuratorate should be advocated. Meanwhile, the doubt for the mode because of its ignorance of the power-controlling function of the procuratorate has been responded in the chapter, which has worked out the scheme for the realization of the procuratorate's supervision in practice.Chapter five expounds the technique in the disposition of the criminal power for the police in China, which develops from three aspects: the power of initiating procedure, criminal investigation and criminal compulsion. As for the disposition of the power for initiating investigation, the paper proposes to retain the current procedure for filing a case with subtle reform of the system to realize the objectives of criminal procedure at the lowest cost. As for the conclusion of investigation, the paper focuses on the time periods of investigation and specifies that the doubt of a case can be used as a condition for dismissing it. However, before the improvement of the power-controlling system in China, the task to promote victim-offender reconciliation lies in the procuratorial and judicial organs. The power to dismiss a case after conclusion of investigation should goes to the procuratorial organs, while the police can only apply for the dismissing and execute it. The disposition of the criminal power of the police is actually the disposition of investigation. Taking the path of expansion and shrinking of the power as the lever, the paper advocates expanding the power by adding the legal investigation categories while shrinking the power by decomposing the power and improving the process. Rather than contradictory to each other, either way, on the basis of the division between coercive and non-coercive investigation, plays the same role to accomplish the disposition of the power in its synchronous interlacement. In the disposition of the power for criminal compulsion, the compulsory measures, from the perspective of its due functions, can be divided into captures, custody and the custody replacement. With the integration and proper reform of the compulsory measures in China, the paper tries to clarify the power for different measures that should be distributed to the police in legislation. Concerning the technique for the disposition, great emphasis is put on the power's compatibility and coordination with other criminal procedure system, law and running background. The justified scheme based on standard analysis and technical analysis may not be the best choice, which should be the one with overall advantages.
Keywords/Search Tags:criminal power of the police, disposition of the criminal power of the police, bounded rationality, transitional system, synchronous interlacement
PDF Full Text Request
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