Research On The Judicial Relief Of Investigation Behaviors Infringement

"Remedy Precedes Rights" or "A right without remedy is not a right" is a British legal maxim, which is also a basic experience of rule of law in developed countries. It is an important symbol to measure the level of a country’s standard of justice and rule of law whether a person can get timely and effective relief after the violation of his rights. As the law of "application of constitution" and "dynamic human rights", the criminal procedure code has always been seen as a national "benchmark" of human rights protection situation in a country. In criminal proceedings, the accused is in a position to be held in the litigation, his rights are vulnerable to be encroached by the prosecution authorities, and the remedy is quite more difficult. From the perspective of improving the legal system, it is important to strengthen the accused’ s rights protection during the proceedings, while it is even more critical for the timely relief when his rights have been violated. Thus, a serious problem arises—There is no effective relief mechanism in China’s criminal proceedings, which is reflected prominent in the investigation process. There is neither procedural sanctions system nor appropriate judicial relief mechanisms in the investigation process.The absence of judicial relief mechanism reflects our investigation procedure does not have the structure of litigation, therefore, the investigation behaviors can not be judicial. Thus, the results will inevitably lead to the suspects cannot get relief for their violated rights. This situation has been confirmed frequently by the injustice cases in criminal practice. As some scholar has pointed out that it is no good to continue to expand the outreach and scope of rights before the establishment of basic judicial relief mechanisms, which can only make effect to add more "rights provisions" in the legal text list and will not bring the situation and the rule of law to substantial improvements. Now, with the accomplishment in building "the socialist legal system with Chinese characteristics", the center of China’s rule of law necessarily means the turn from the legislative times to the judicial times. The next development phase of rule of law will be to resolve the outstanding contradictions in law enforcement. Corresponding to this turn, the focus of research must subsequently turn to the research on legal operation of the dynamic theory and practice from a static and macro theory of legislation research. At present, China is facing a new amendment for the criminal procedure code, the criminal justice system reform is also reshaping its investigation procedure. Thus, the research on judicial relief of investigation behaviors infringement will greatly promote our criminal justice system reform and improvement. Judicial relief is an important way for rights protection, while the behaviors justiciablity is the necessary precondition for judicial relief. Just For this reason, I decided to choose the research on the judicial relief of investigation behaviors infringement as my doctoral dissertation topic.In addition to the introduction, the paper is consist of six chapters. The main points are summarized as follows:The introduction describes why the topic is chosen and what are the research statuses of judicial remedies both at home and abroad. It also introduces the research ideas, research methods and structural system and so on. The whole paper focuses on the basic idea "putting forward the problem, analyze the problem and solve the problem". Based on analyses and demonstrations of the concepts, theories, systems and practices, the paper breaks through each level to realize the overall research goal. In common law countries, the right of appeal as the core of the right to relief has always been a central issue for both the substantive law and the procedural law. Therefore, there are wealthy results both in theoretical research and in judicial practice experience. Compared with the common law countries, the civil law countries focus on the theory of legal behaviors, they often pay attention to the accused’s rights remedies in the perspective of the effect of investigation behaviors. While in China, the theory of rights remedies still remains in the situation of rights justification, which making it difficult to provide effective theoretical guidance for the construction of rights remedies. Practice shows that the law based on the "rights set" is difficult to truly implement in practice for its lack of maneuverability, therefore it is difficult to realize the function to remedy rights. For this deficiency, this paper tries to achieve the conversion breakthrough from the right justification to right operation.Chapter I focuses on the judicial relief of investigation behaviors infringement and its relationship with the justiciablity of investigation behaviors. The specific content is divided into two paragraphs. Paragraph I analysizes the connotation of investigation behaviors infringement and its judicial relief. The investigation behaviors infringement in this paper, specifically refers to the suspect’s person, property or other rights violations caused by the investigating authorities’illegal investigation behaviors in the investigation process. The judicial relief consists of broad and narrow meanings. The broad meaning refers to the full control to the investigation behaviors so as to avoid the infringement, including the prior prevention, the judicial involvement and the ex post facto judicial relief;the narrow meaning refers only to ex post facto judicial relief. Since this paper emphasise a comprehensive control to the investigation behaviors, so this paper uses the broad meaning. As for the nature of the investigation behaviors infringement, the author believe that it is an infringement of administrative power, which is a kind of administrative interventions. Paragraph II explains the connotation of the investigation behaviors justiciablity and the relationship between the investigation behaviors justiciablity and the investigation behaviors infringement judicial relief. The connotation of investigation behaviors justiciablity referred to in this article, containing broad and narrow meanings. The broad meaning is the judicial review of investigation behaviors. The narrow meaning refers only to criminal suspects have the right to appeal lawsuit against investigation behaviors to the court. The author believe that the investigation behaviors infringement judicial relief only lies on the basement of the investigation behaviors justiciablity, otherwise, it cannot achieve the protection to the criminal suspects rights.Chapter II analyzes the legitimacy basises of the investigation behaviors infringement judicial relief. The specific content is divided into four paragraphs. Paragraph I analyzes the different perceptions on the relationship between "remedy and rights" in both common law countries and civil law countries, whether it is "relief priors rights" or "right priors relief", the existence of the right to relief cannot be ignoured.While the right to relief does not mean that it can lead to the country’s judicial relief. It is still need a right of appeal to start the country’s judicial relief. As a start and restrict right to jurisdiction, the right of appeal is very important in the investigation process. There is a direct link between the right and judicial relief. ParagraphⅡanalyzes the necessity of the investigation behaviors infringement judicial relief from the perspective of resolving criminal disputes and maintaining social order.The investigation behaviors infringement itself is one of the manifestations of social conflict. The cognition of conflict phenomenon is a basic clue in seeking theoretical basises for right remedies, and it is also the reality foundation for the investigation behaviors infringement judicial relief. In dispute settlement, the reason why the lawsuit solution is chosen is because the law itself contains expectations for the order pursuit, which the law can not only provide people with "reliable expectations" so that people can get their behaviors orderly conducted, but also provide them the resolution mechanisms when they meet with disputes. The investigation disputes are performances of criminal disputes in investigation stage, so their solution must follow the basic litigation approach to resolve criminal disputes. ParagraphⅢanalyzes the legal principle of criminal procedure and due process, which not only set forth explicit requirements for the investigation procedures, but also provide a legal basis for judicial relief of investigation behaviors infringement. Paragraph IV analyzes the principle of human rights protection and judicial review, and points out the main objective of the country ruled of law is to protect the citizens from the abuses of state power. As the state must respect and protect human rights, it must provide for human rights violations with effective remedies. From the overview of law practice in the world, the countries ruled of law all choose judicial review system to achieve the protection of human rights. "The perfect ideal of the country ruled of law reached its peak is the universal justiciablity, and all the state power behaviors and disputes can be resolved by quasi-judicial means. "Chapter III illustrates the functions of the judicial relief of investigation behaviors infringement. The specific content is divided into three paragraphs. ParagraphⅠillustrates the criminal subject theory, and analyzes the human rights protection function of judicial relief from the inspects of ensuring equality of prosecution and the defense, the suspect’s exercise of defense rights and the relief of rights violated. ParagraphⅢanalyzes the connotation of procedure justice, the judicial relief can provide a third-party referee mechanism, have the parties participate in the investigation process, and make the investigation process appropriate open, which enables investigative procedure justice. ParagraphⅢelaborates the function to control the investigation power. Since judicial relief realizes the investigation structure perfection, it can make the investigation power to be restricted both by the appeal right and the judicial right.Chapter IV is the outside research on the judicial relief of investigation behaviors infringement. The specific content is divided into two paragraphs. ParagraphⅠintroduces the general approaches of the judicial relief of investigation behaviors infringement in modern countries ruled of law. Althrough the litigation concept varies greatly, the specific investigation operation way has also its own characteristics, the vast majority of countries all have judges participating in the investigation process to make the investigation power restricted by the judicial power so as to prevent its deviation and errors from occurring in operation process. And by giving justiciablity to the investigation behaviors, they have established the dynamic judicial control over the implementation of investigation behaviors and provided special relief measures. Overview the experiences from the developed abroad countries ruled of law, the procedure regulations to the implementation of investigation behaviors consist of three manners, they are the prior judicial authorization:the writ system; the judicial participating in the process:the judges involving in the investigation and the ex post facto judicial control:the judicial remedies. No matter what kind of procedure regulation, they all have the fundamental principle of judicial review established with the basic purpose of judicial remedy embodied. Paragraph II elaborates the special approach of the judicial relief of investigation behaviors infringement in modern countries ruled of law. In addition to the general approaches above, there is still a special way to the judicial relief of investigation behaviors infringement, that is constitutional litigation. The constitutional litigation referred to in this article, only means a special way which the citizens have the right to appeal to the specialized agency for seeking constitutional relief after their constitutional rights have been violated. It is only a special way for the settlement of disputes between the public power and the private rights.Chapter V is the analysises on the domestic situation of the investigation behaviors infringement judicial relief. The specific content is divided into two paragraphs. Paragraph I analyzes the problems which exist in the domestic situation. The main problems lie in the absences of procedural sanctions system and relief systems. The absences of either procedural sanctions system or rights relief systems, fully illustrates that the investigation behaviors have no justiciablity, which lead inevitably to the direct result that the victims can not appeal the illegal investigation behaviors to the courts so that their rights access to ineffective relief in the course of criminal proceedings. Paragraph II analyzes the reasons of the domestic judicial relief system absence. The most prominent reasons lie in five respects. First, there are conceptual barriers for China in constructing the judicial relief system; Second, we are inadequate in absorption the foreign advanced experiences of rule of law; Third, The investigation procedure having no litigation structure, and the right of appeal lacking exercising space;fourth, the improper enactment relationship among the public security bureau, the procuratorate and the court; and fifth, the prevalence of criminal justice hidden rules. Due to the impacts of these factors, in the case of the basic principles of modern criminal procedure having not been established, the investigation behaviors justiciablity is no doubt too specific an issue. A slight move in one part may affect the situation as a whole with its concern directly to the whole national criminal justice systems. It is a natural thing for the absences of domestic judicial relief system.Chapter VI is the construction of the judicial relief of investigation behaviors infringement in China. The specific content is divided into two paragraphs. Paragraph I elaborates the concept position for the construction of judicial relief of investigation behaviors infringement. "Concept is the basis for system construction, which is also the driving force for system operation. " In order to achieve the modernization of China’ s legal system, we must have the macro-ideas of Chinese legal system construction and the concrete ideas of criminal relief system remodelled. The author believes the system is a product of experience for the original countries while it is a product of rational construction for the undeveloped counteies. The history of more than a hundred years of ruling by law showed that we must get rid of the minset of spontaneous evolution of system but not the rational creation, and abandon completely the misconceptions of "our own national conditions theory" and "local resources of rule of law theory".Only in this way,We can humbly draw and learn from the experiences of advanced systems in other countries with an open mind. ParagraphⅡelaborates the Institutional Imagines for the system construction. From the perspective of system construction, in the needs of perfecting China’s future constitutional system, the author thinks there are three goals for the construction of the judicial relief of investigation behaviors infringement:Short-Term Goal; Medium-Term Goal and Long-Term Goal. Short-term goal is to give justiciablity to the investigation behaviors so as that the suspects have the right to appeal the investigation behaviors to the courts. Medium-term goal is to establish a system of judicial review, so as to make the investigation power restricted by the court. Long-term goal is to establish constitutional litigation. Although China’s constitution has recognized itself the highest legal force in the legal system, the constitution is only be seen as a symbol with its no application in justice. In order to protect effectively the citizens’constitutional rights, China is in great need of setting up the constitutional judicial relief system on the basis of existing judicial relief systems.