On The Rationale Of Procedure Of Investigation

The article includes five chapters: introduction the basic categories of procedure of investigation the basic principles of procedure of investigation the structure of procedure of investigation and the procedural sancti on of procedure of investigation. The core of the article is to make the procedure of investigation possess the character of litigation and the three clues are: the standardization and restriction of power of investigation the support and remedy for right to attorney and judicature's intervention in and control on the investigation.Chapter one, introduction. In this chapter the author discusses the status, the value of procedure of investigation and the necessity of studying procedure of investigation.Procedure of investigation is the first substantive stage of criminal procedure and the reasonable structure of procedure of investigation is very important to the realization of criminal procedure's three goals: controlling crimes, safeguarding human rights and increasing the efficiency of proceeding. In China, studying procedure of investigation is helpful to perfect the legislation of procedure of investigation, to push the reform of criminal judicature and to construct the theoretical basis for procedure of investigation. The special status of procedure of investigation is not in contradiction with "centralism judgment".Chapter two, The basic categories of procedure of investigation. In this chapter the author studies the three basic categories of procedure of investigation: investigation> power of investigation and procedure of investigation and make detailed examination in their trivial differences,Investigation refers to all the activities the investigative organization carries out to collect criminal evidence and track down criminals. The subject is only one party, that is, the investigative organization; the function is to perform accusation function; the object is to prove the criminal guilty or prove the criminal to have committed serious crime, thus it's not enough only to study the activities of the investigative organization in studying procedure of investigation.In China, there exists the generalization phenomenon in the understanding and provision of judicial power in legislative and theoretical fields. Judicial power in essence is a judgment power, while power of investigation in essence is an execution power. Thus power of investigation is an executive power in the state's power structure, not a judicial power. Whether in function or value, in structure or personnel, or in the operation of power, the power of investigation has the basic characters of executive power and it is totally different from judicial power. In our country's theoretical field and current criminal procedure law, power of investigation is looked upon as a judicial power and this runs counter to the basic requirements and laws of modern rule of law and criminal litigation.Procedure of investigation refers to the activities of the investigative organization, the suspect, the advocate's collecting evidence and tracking down criminals with the judge's intervention and control in order to ascertain whether there exists the criminal facts and the degree of criminal responsibility. Procedure of investigation also includes three parties: the prosecuting party, the defending party and the judging party, thus it should be a litigation structure. The tripartite structure of procedure of investigation and that of trialprocedure have identical aspects and also have different aspects.Chapter three, the basic principles of procedure of investigation. In this chapter, the author mainly discusses the following four principles: principle of objective and considerate obligation, principle of proportionality doctrine of proper publicity and principle of timely litigation on the basis of studying the function, scope and system of the basic principles of procedure of investigation.The basic principles of procedure of investigation are very important to guide and regulate legislation, to remove people's mi...