Criminal Investigation Of The Writ System

Warrant system could be traced back to Anglo-American ancient legal system. In thebeginning, warrant system, which was no more than executive tool of constable, had nofunction of safeguarding human rights. With hundreds of years of development, the value ofhuman rights has been exalted step by step, and turns into a primary measure to controlpolice power in Anglo-American legal system. According to the legal culture and judicialsystem in the Continental legal system, the warrant system in Britain and United States hasbeen transplanted and reconstructed in the Continental legal system, and become adistinctive warrant system. Nowadays, warrant system is common experience of controllingpolice power in both Anglo-American legal system and Continental legal system, and it isobeyed in every legalized nation; moreover it is recognized and advocated by someinternational treaty of human rights and international organization of human rights.Constituting warrant system in criminal pretrial procedure is a primary task in Chinesejudicial reform, and accordingly the research of warrant system in criminal investigationhas profound significance. The dissertation focuses on warrant system in criminalinvestigation, and it reviews the origin of warrant system in Britain and United States.It researches the warrant system in both countries, and compares the warrant systemsin both two legal systems. The dissertation analyzes the values and functions of warrantsystem, lastly it advances legislative advice about constituting warrant system in China.The dissertation is made up of five chapters, about 120,000 words in all.Chapter 1 is introduction. Historically, both warrant and warrant system areall-inclusive, so this dissertation limits the research object to warrant system in criminalinvestigation. Warrant system is not simple system about judge deciding compulsorycriminal investigation. This chapter introduces the essential of warrant system, namely,substantive requirement, formal requirement, and procedural requirement, which aredifferent from that of other systems. Then this chapter confirms the scope and kinds ofjudicial warrant. This chapter introduces the history of warrant system in Britain and theUnited States, and reveals the rule of warrant evolvement from executive tool to the deviceof controlling police power.Chapter 2 is about introduction warrant system in Anglo-American legal system. BothBritain and the United States are the original country of warrant system, and both countriesare donators of warrant system. Warrant system in the United States has common groundswith the warrant system in Britain in many aspects, but there is some material difference between two countries. The chapter introduces and analyzes warrant system in UnitedStates, especially in substantive requirement, formal requirement, and proceduralrequirement. Moreover this chapter introduces the counterpart in Britain. On the one hand,both Britain and the United States persist in the warrant system in order to control policepower, on the other hand both countries confirm and limit strictly the exception of warrantsystem in order to insure efficiency of criminal investigation. This chapter studies 3 typicalexceptions of warrant system, which are non-compulsory criminal investigation, exigentcriminal investigation, and search incident to arrest.Chapter 3 is warrant system in the Continental legal system. Warrant system inContinental legal system draws no attention from the academic circle in our country.Traditionally, judicial warrant is a device of controlling police power in Anglo-Americanlegal system, not in Continental legal system. Consequently, warrant system in Continentallegal system is transplanted from Britain and United States. Compared to Anglo-Americanlegal system, Continental legal system pays less attention to warrant system, and it isrelated to there distinctive legal culture and judicial systems. However, besides judicialwarrant, there are many measures to control police power in Continental legal system. Thischapter introduces warrant system in Germany, and compares it to warrant system in theUnited States. Lastly, the author draws a conclusion that although the exterior conditions ofwarrant system are not perfect, Germany does better job in many aspects about humanrights in criminal investigation than the United States, which is enlightening for thereconstruction of warranty system in China. Besides, this chapter simply introduces thewarrant system in Japan, and expatiates the features of Japanese warrant system.Chapter 4 is the theoretic analysis of warrant system. In section 1, this dissertationexpounds the general theory of judicial review, and then analyses the essence of warrantsystem, and finally, concludes that though a system of judicial review which embodies incriminal procedure, warrant system has some particularities when compared with otherordinary judicial reviews. In section 2, the dissertation analyses liberty, justice, and humanrights legal value of warrant system. In section 3, the dissertation reviews the dual functionsof judicial warrant. On the one hand, controlling police power is the primary function ofwarrant system, on the other hand safeguarding the authority of enforcement is thesecondary function of warrant system. The former is achieved by twice judicial reviews,and the latter is embodied in order and obligation. Warrant system is anything but perfectsystem, it has obvious limitation, and meet challenges from many aspects. This chaptertakes a technical investigation for example, puts the warrant into high tech improvement context to rethink traditional warrant system. Furthermore, in the practice warrant systemfaces many problems.Chapter 5 elaborates on the construction of construction of warrant system in China.This chapter reviews the actuality of legislation of compulsory investigation, and thendemonstrates the necessity and feasibility. This chapter brings forward 3 problems inconstruction of warrant system, and then expounds 3 theoretic premises, such as enactmentof norm, choice of warrant mode, and attitude to local resource. In that context, this chaptertestifies that there are basic conditions in China to construct warrant system, so it is feasibleto construct warrant system in China currently. Lastly, the chapter puts forward some detaillegislative plans of warrant system, such as scope of warrant, substantive requirement,formal requirement, remedy of warrant system, and executive procedure of warrant system.