The Police Power From The View Of Rule Of Law

Police power is an important component of national public powers. Just like national power having two-side effects, the police power can be either a tool of maintaining order and protecting human rights or a tool of supervising beyond society and serving for tyranny; either complying well in the structure of democracy and rule of law or acting wildly against law and public opinion. Various social conflicts appearing with partial social crises during the social shifting period, the police power should be emphasized and strengthened as an efficient mechanism of handling social conflicts and social crises. Meanwhile, how to respect and protect human rights, especially the rights and human rights of the social vulnerable minority during police power executing, is also a key practical problem. Based on such a theoretical consideration, I choose "the Police Power from the View of Rule of Law"as the theme of my doctoral dissertation. This paper has two parts. The first part deals with the basic theoretical study on police power: seeking the basic features of police power from the nature of public power; seeking the developing principle and trend of police power from the system's historical evolution; seeking the value positioning of police power from the morality background of the public power; seeking the coverage and restriction of police power from the constitutional framework of national power. The second part studies on the rules of distribution and execution of police power and proposes ten principles on contribution and execution of police power: pointing out the principles and methods of constricting and supervising police power by theoretically analyzing administrative function and criminal function of police; analyzing the coexisting trend of police power restriction and expansion; proposing the developing target from regulating model to service model and from traditional close to open community police. The first part is about the jurisprudence base of police power, divided into five chapters. Chapter one generally discusses police power, in which research method and angles are focused on. From the angle of history, it summarizes that the historical evolution process keeps pace with the civilization development of rule of law and gives answers to police power's origination, reality development stage and developing orientation with historical analysis method. From the view of ethic and valuation, it points out the importance of analyzing ethic value, for police power cannot solve problem of just and rational distribution and execution of police power by itself. From the angle of national power structure, it proposes the analyzing method to acquire police power under the constitutional structure and on police power execution rules. From the angle of rule of law, it proposes the importance and necessity of fixing and positioning police power according to the basic values and developing level of the rule of law. Chapter two analyzes the general natures of police power. As for nature, police power indicates the direct enforceable national power for maintaining social order, punishing crimes, protecting human rights, protecting individual body and property security and national social interests. Aiming at directly maintaining social public order, police authorities include police administrative authority and police criminal authority. Police power roots from national sovereignty. In modern nations carrying out rule of law, when police execute authorities, they must comply with law, namely, when any national sovereignty duty exists, there is duty to comply with police power. The realizing method of police power mainly expresses as its enforceability, and objectives of police power are individual rights and freedom, including property rights and body freedom, which is one of the distinctions from other administrative powers. Chapter three examines historical evolution and development of police system. It mainly checks the police system historical evolution in Britain, America, continental Europe and China, and then reaches the conclusion that police system evolution in western countries has experienced four symbolicstages: stage of police particularity, police professionalization, police specialty and police modernization. Chapter four analyzes the ethic background of police power. Since individuals pursue freedom but society pursues order, there always exist contradiction between individuals and society. How to distribute police power will directly affect maintaining social dynamic balance system. On value composition, freedom and security, human rights and order are basic elements. Security and order are value target and base of rationality, without which police power will lose base of existing. Human rights and freedom is the border line of police power and adjusting machine to ensure police power following expected route. Chapter five discusses the constitutional base of police power. During the historical evolution of different types of regime, both "the Nation of Police"and "the Nation Ruled by Law"are used to describe two different types of nations and the difference does not lie in whether or not there exist police but lies in whether or not the police power is arranged within the framework of constitution. Since the conflicts between public power and citizen rights are evitable social reality, we should pay more attention to the rational balance between them during our society shifting to the times of rule of law and times of rights. Under the constitutional framework, we should properly handle four boundaries: to strictly define boundary between police power, judiciary power and legislative power; rationally draw boundary between police power, market and society; correctly handle boundary between the central and the local; properly arrange boundary between police power and other administrative powers. Following five chapters, from chapter six to chapter ten are about distribution and execution of police power. Chapter six analyzes distribution and execution of police power, listing as following ten principles. First, principle of protecting human rights; second, principle of police commonality; third, principle of efficiency; forth, principle of just police process; fifth, principle of law priority and reservation; sixth,principle of police proportion; seventh, principle of police trust protection; eighth, principle of police rationality; ninth, principle of police transparency; tenth, principle of restricting police power and relief. Chapter seven studies police administrative authority. It generalizes the content and coverage of police administrative authority, and analyzes executive rules and strategies of eight authority including public order management, special trade management, dangerous goods management, citizen identification management, roads and traffic management, fire-fighting management, custom and foreigner affair management, social order supervision and guidance. Meanwhile, it analyzes factors'influence on crime control, such as police expectancy, reactive rate and arresting. Chapter eight discusses police criminal authority, which indicates the police power of detecting duty among criminal litigation activities. It mainly analyzes several questions such as police authority of taking criminal enforcement measure, judiciary control on detective activities, relationship between police and prosecutor. Based on spirit of rule of law, it analyzes the current problems and reforming orientation of the criminal enforcement measure system; it analyzes the inevitability and necessity judicial control on detective activities in legal society, and designs the specific model of judicial control based on police practice; it proposes that since as for relationship between police and prosecutor, the proclaim of oneness of police and prosecutor neither suits Chinese reality nor is the inevitable choice of evolution of rule of law, the supervision of prosecutor should be regarded as the outer restriction of police power instead of the inner regulation during detective stage; it proposes reforming measures such as widening participant of lawyers and video recording at inquiring suspects to strengthen democracy and opposability of criminal litigation. Chapter nine studies restriction and supervision on police power. It analyzes restriction and supervision mechanism on police power from three aspects of citizen rights, other national power and society. Also, it discusses the special supervision on police power from the angle of the right of remedyowned by the counter-party. Chapter ten foresees reforms on police power. It focuses on the trend of restricting and expanding development of police power. On one hand, in order to protect human rights, maintain social autonomy, and execute according to law, each nation tries to restrict the police power. "Loosing Regulation"influences police reform greatly, and recently the social order management power of examining and approving has been shrinking year by year in China. As the market and society's functioning mechanism becomes mature, police enforcement has retreated from many public fields, and the former one-way management gradually changes into mutual service. At the same time, to deal with organization crimes and terrorism crimes, the proclaim of "Freedom Gives Way to Security"influences different governments, and the traditional theory of limiting administrative power has been broken through to some degree. It typically expresses out as expansion of police power in the following three fields: legislative power, judicial power and police power itself. The two different developing orientations seem contradictive to each other but they meet the changing social development requirement, so we will definitely fall into an embarrassment without grasping the inner core of rule of law. At last, in the conclusive part this paper proposes five ideas police practice should follow: the idea of police socialization, the idea of the transfermation from management to service, the idea of democratization, the idea of rule of law and human rights, the idea of both judicial control and rights remedy.