Modernization Of China's Traditional Criminal Investigation System

In 1840, western imperialists broke China's door by force. Since then, China had to confront the social transformation that hadn't happened ever in the past 3000 years. As a result, China went through structural reform in politics, economy, society and other aspects. Meanwhile, China's traditional criminal investigation system also collapsed gradually. In 1900s, Qing Dynasty revised the law and developed constitutionalism. But it didn't save Chinese traditional autocratic sovereign. On the contrary, it accelerated the disintegration of Chinese traditional legal system and the criminal investigation system as well as promoted the primary establishment of modern"authority principle"criminal investigation mode. In 1911, the Xinhai revolution ended Chinese feudalism and founded the Republic of China. The new government took the following steps to speed up the modernization of criminal investigation system: improving the criminal investigation procedure, specializing the criminal police organization, and transplanting modern forensic technologies. Thus, the modernization of Chinese criminal investigation progressed rapidly and greatly.This paper studies the primary modernization of Chinese criminal investigation system between 1906 and 1937. On the basis of a series of discussions, I work at finding the historical resource of this transformation. And the paper analyzes how did the traditional criminal investigation system was promoted, depicts the process and searches the defects. All of these are aimed to answer the following questions: First, What was the process of modernization? Second, what were the factors that influenced the modernization?The part of introduction involves the following aspects: the study structure, study method and object. And I review the relative academic history.The first part studies Chinese traditional criminal investigation system. In the traditional society, the criminal investigation power belonged to the judicial authority, so the traditional criminal investigation power didn't develop independently. As a function of the national criminal justice, China's traditional criminal investigation authority formed a special structure, which showed following characteristics. Power was allocated according to ranks and status. The power couldn't operate independently. The run of Chinese traditional criminal investigation focused on the evidence, so the searching, fixing, and collecting of evidences were its main tasks. Due to insufficient knowledge and low-developed forensic technology in Chinese traditional society, the staff paid more attention to the verbal evidence than material evidence.Under the traditional"authority principle"criminal procedural mode,"presumption of guilt"was very popular. Oral evidence was considered as"King Evidence". All of these factors cultivated the highly-developed"Extortion by Torture". Chinese traditional criminal investigation system formed its own way: Firstly, it got rid of"Divine Determination"primarily. And the system embodied people-based doctrine. Secondly, in order to guarantee the monarch sovereign, the dictatorial power mixed in the ancient criminal investigation. Finally, judicial officers paid too much attention to the criminal investigation experience rather than science. So, ancient China didn't cultivate highly-developed forensic technology.In the second part, I depict the transplanting of modern criminal investigation system from the west. And I describe the theoretical and institutional preparation for the modernization of criminal investigation system. After the mid-19th century, Chinese seclusion was broken up and the traditional criminal investigation system fell down gradually. The imperialists snatched the consular jurisdiction and settled the concessions. Those factors disintegrated Chinese traditional legal system. While invading Chinese judicial sovereignty, they set examples for the transformation of Chinese criminal investigation system. The ideas were imported into China, such as judicial independency, democracy, legal procedure, etc. People got more knowledge about the modern criminal investigation such as power, staff and act. Those ideas provided guidance for the criminal investigation systematical transformation. At the beginning of 20th century, Qing government started to establish modern police system, as well as modern criminal investigation department. It propelled the specialization of criminal investigation. The primary reforms established systematical basis for the modernization. In the transformation, China actively transplanted the western modern criminal investigation system instead of adhering to Chinese traditional mode. At the beginning, they followed the example of Japan by generally imitating Japanese system via visiting Japan, studying overseas and employing Japanese consultants. With the further development of modernization, China also learned from America and Europe. Therefore, the modernization comprehensively absorbed factors from German, Austria, America, Japan and other countries.The third part systematically analyzes the criminal investigation power in the modernization. During the judicial reform at the end of Qing Dynasty, modern court system and prosecutorial system were established, leading to the primary separation of judicial power from administrative authority. The judicial police system was established, and it broke up the traditional structure of criminal investigation power. After 1911, the system of criminal investigation was always changing; plus, the relationship between criminal investigation power and judicial authority was constantly adjusted. Though there once emerged such abnormal phenomenon that"County Magistrate holds the judicial power". As a whole, the modern tendency of separating criminal investigation power from judicial power wasn't fundamentally abandoned. In addition, the personnel relationship between Procurators and policemen varied while the"Integration of Procurator and Policeman"maintained. The procurators could command policemen to investigate criminal cases, and policemen could investigate independently, as a result, they could balance mutually. Between 1906 and 1937, the pre-judge system was introduced into China. Judges, procurators and criminal policemen once participated together in modern criminal investigation procedure. Then the balance of them was kept. And it profited protection of the rights of procedural participators. That pattern was broken down during the period of Nanjing Provisional Government, but was later restored by Beiyang Government. In 1928, Nanjing Government made some further reforms on criminal investigation system. It abolished the preliminary hearing system. As a result, the balance between judicial power and criminal investigation power was broken up again.The forth part displays the fact that Chinese traditional factors in criminal investigation system were replaced by modern factors, and the modernization gained some primary development. It was mainly reflected as follows: Firstly, a large number of regulations on criminal investigation were promulgated and revised constantly. The modern criminal investigation could be implemented through application of the rules. Secondly, the criminal investigation organizations were specialized, and the criminal investigation departments were more and more sophisticated. Meanwhile, the judicial police department was established separately. Thirdly, with further modernization, several kinds of Criminal Investigation Academies and Police Colleges came into being. So, the vocational education of criminal investigation developed a lot. Finally, China imported western modern criminal investigation science and technology. Trace inspection, forensic image, document and forensic medical examination, etc. were developed.The fifth part: in the early 20th century, the modernization of Chinese traditional criminal investigation system didn't get complete success, for it failed to show"Modern Characteristics". Firstly, under the special political and military environment, criminal investigation power only gained little independence. The run of criminal investigation procedure gradually expelled judges, and it showed"Executive Punishment Procedural Characteristics". Secondly, the establishment of criminal investigation organizations was irrational. Thirdly, the criminal investigation procedure showed military characteristics. Finally, curbed by the idea"Set a Thief to Catch a Thief"and unscientific investigation education, the staff weren't well qualified and their capacity was very limited. That led to the abuse of illegal investigation, so the impression of the staffs was extremely bad.People's Republic of China imitated Soviet Union to construct the"Super Authority Principle"criminal investigation mode. But, the modernization of criminal investigation system has never been suspended. Nowadays, China's criminal investigation system has developed a lot in the organization, criminal investigation education as well as the staff's quality. But the aims of modernization of criminal investigation system haven't achieved. It is difficult for the criminal investigation power to keep independent. And it shows"Executive Punishment Procedural Characteristics". The weakness in the primary development of Chinese criminal investigation system has not been corrected completely. We should cultivate people's subject consciousness, individual and right orientated concept and by importing the judicial review system, fully guarantee the procedural rights of both suspects and other participators.