On Criminal Case-filing Supervision

The particularity in the Chinese configuration mode of the investigation powermakes it necessary that there is a criminal case-filing procedure. At the same time, inorder to overcome the abuse of power that occur frequently in practice, the amendmentof the Criminal Procedural Law of1996, has also set up a criminal case-filingsupervision system. However, due to the unreasonableness of our country’sconfiguration of investigative power, many of theses provisions are too general for thecriminal case-filing supervision to play the role that is expected of it. Therefore it isindispensable that we seek to ameliorate the criminal case-filing supervision systemstarting with a reasonable distribution of investigative power between the procuratorateand the service of public security.This article is composed of four parts: the legitimacy of the criminal case-filingsupervision system; Chinese legislations concerning the criminal case-filingsupervision system and related issues; an empirical study of the criminal case-filingsupervision system; prospects of reforms of the criminal case-filing supervisionsystem.Chapter1discusses the legitimacy of the criminal case-filing supervision. Withthe orientation and the nature of the Chinese procuratorates having always been thefocus of controversy, it goes without saying that as one of the emerging powers of theprocuratorial organs, the criminal case-filing supervision has confronted with manyquestionings. It’s why the author focuses this chapter on arguing for the legitimacy ofsuch supervision from the theoretical as well as the practical aspects.Chapter2first dwells on the Chinese legislations regarding the criminalcase-filing supervision, analyzing elaborate their advantages and disadvantages, andfurther clarifies the concept of the criminal case-filing supervision in emphasizes thatwhoever is endowed with the power to investigate should be subject to the suchsupervision: the procuratorate, the service of public security, the court and the prisonadministration authorities, etc. It continues with an explanation that due to the highthreshold of being placed on file, there are a lot of cases cannot but resort to the “private detective", hence the mushrooming of the latter. It ends with an analysis of theunavoidable problem: the preliminary investigation.Chapter3concentrates on an empirical study of the status quo of the operation ofthe criminal case-filing supervision system. Based on an overview and a detailedanalysis of the work concerning the criminal case-filing supervision system at both thenational level and the provincial level, the author, in acknowledging the achievements,points out that there is still a long way to go for the criminal case-filing supervisionsystem to play the role that is expected of it.Chapter4is about the reforms that the author envisages. Firstly, considering thatthe legal construction in our country is and will still be in long run in the initial stage,the author advocates a progressive approach for the judicial reform, which means someameliorations in the existing framework such as the construction of a mechanism of theprotecting the clues and the establishment of a special criminal oversight body.Subsequently, the author envisages that in the near future, we can accomplish aneffective supervision on the criminal case-filing by the set-up of a mechanism in whichthe Police subordinate the Procuratorate with the latter entrusted with the power ofdeciding to place a case on file or withdraw a case, to start or supplement aninvestigation as well as the power to propose des sanctions against the investigators.Finally the author proposes a quasi-judicial review of the coercive measures takenduring the investigation in order to better and fully protect the human rights.