| The regulation on police power in china, it not only an important topic which constitution and administrative law concerns but also the great puzzle we have to solve in the progress of construction of socialist country ruled of law. This dissertation, on the basis of the former researches, discusses the main theme, makes a great research on basic meanings, principles, methods and construction of regulation on police power.The dissertation divided into nine parts, they are introduction, seven chapters and the conclusion.In the introduction part, the dissertation clarifies the theoretical and practical significance of the topic, summarizes current academic and practical research and their weaknesses of police power. Then this article introduces the research methods employed, including analytical and empirical method, social survey method, comparative method and historical method. This part also defines the core concept of the dissertation, pointing out "the legal regulation of police power" means regulating and restricting the police power by legal means in order to operate police power by rule of law.The first chapter which can be divided into three paragraphs discusses the significance of legal regulation of police power. The first paragraph gives a brief introduction of research on the regulation of power from philosophers and jurists since ancient Greek era and analyzes the topic from a jurisprudential perspective. Power, by its nature, is relative, dominative, authoritative and the function of its regulation is to prevent power from being abused or exceeded and to guarantee the unified exercise of power. Besides, the regulation of power is constitutional, for that the constitution of capitalist countries establish the principle of separation of powers and the Chinese constitution has rationally divided powers and established a "contain and check" system. The second paragraph analyzes the nature and uniqueness of police power, indicating that police power not only shares the same nature of other power, but also possesses its own characteristics which include special coerciveness, strong restrictiveness, high riskiness and low transparency. The coerciveness encompasses the coerciveness of objects, persons and environment which can be decided and implemented by police himself and usually coupled with violent methods. As the only administrative power that restricting personal liberty, it restricts the right to life and health, personal freedom and property right. The exercise of police power not only may cause deaths and casualties to the police, but also endangers the safety of its objects, sometimes triggering social turmoil. What’s more, the exercise of police power is also, to some extent, of low transparency. Some measures are taken in enclosure spaces which are difficult for the public to see. The third paragraph elaborates on the problems within the exercise of police power in practices. It highlights the urgency of regulation of police power, due to such serious abuses as power excess, violence, corruption and power anomy.The second chapter examines the practices and experiences of regulation of police power from some foreign countries, which underlines the proportionality principle, judicial review of police power and its internal supervision. Proportionality principle is the corollary clause for civil law countries to regulate administrative misconduct and it includes appropriateness, necessity and equilibrium. Appropriateness requires that the measures taken by police should be appropriate for the objectives. Necessity asks the police to weigh possible measures and choose the least-offensive one. And equilibrium demands that the interests damaged should be less than those protected by police power. The common law countries usually employ the judicial review method, in particular, the pre-review and mid-review. The police have to get a mandamus before coercive investigations and judges will review the reasons and objects presented by the police. According to the law, when do the inappropriate mandamus, they could get some rescues by apply to habeas corpus, appeal to the court firstly be bail out, eliminate the illegal evidences and so on. Inside of the police supervising system, they have different patterns among United States, England and China. In American, this implements the self-government system; the inferior police organs are not subordinate to the superior ones. So generally, they have inner affairs office for investigation on police violence, corruption and right abuse. In 2004, England has set up an independent supervising committee, which works on the investigation of complaints to the police. The Hong Kong has an inner investigate office on the complaint and serious violation of discipline. We can learn a lot from their experiences on how to perfect our regulations of police power.The chapter three mainly discusses the principles of regulating the police power, which are the rule of law, the rule of procedure, the principle of moderation, and the actual parity principle. For such a long time, our country puts too much emphasis on the individual moral promotions, but ignores the construction of legal system, which leads to the police power abuse and serious corruption. Under the circumstances of govern the country by rule of law, we should seek a legal way, which mainly restrains the power by law, to solve the problems. Given the specification of the police power, which should give more considerations on the rule of law, enacts the titles, boundary, patterns, procedures and duties according to the law. In the reality work, the relationship between practice the rule of law and adhere to the leadership of Party should be solved, and the contradiction between the administrative law enforcement and the offside of the police power should be solved too. The substantive power is much more superior than the procedural power is our nation’s tradition, therefore, the regulation on police power must put more emphasis on the principle of due procedure, and which has a specific value, requires the police executive works should justice, open, involve and efficiency. They contain some requirements such as reveal yourself; register the case, investigation, hearing, rescue, informant and prescription. The principle of moderation is just part of the Proportionality principle, that requires the police power is not only keep efficient but also limited, and keeps the balance between their duty and human right protection. This principle makes the double goals which are achieving their duties and social harmony especially in this time. The police executive power should rule the three basic principles, which are necessary rule, the minimum infringement and the rights as legal interest. Police power, as the strictest implement of the administrative power, is the least way to solve the problems. Besides, the modern society requires the right as legal interest; anyone can be rescued while their rights were infringed by the illegal police power. All the principles above separately regulate the police power from the pre, the middle to the after way, which becomes integrality.Chapter four, chapter five,chapter six and chapter seven separately list the four basic ways on regulation of police power in china, which are power restriction, right constraint,self-constraint of police power and the legal regulation of police powers to build the system.Chapter four discusses the power restriction of police power. Under the current constitutionalism of china, the prosecutorial power and the adjudicative power is more concerned in the reality. The ways to restrict the prosecutorial power is mainly arrest examination, review and prosecution, pre-intervened case, accept the charge, appeal and accuse. The way to supervising is mainly prosecutorial advises, correct the illegal information, register a case to the police illegal actions and so on. Now, there are still some problems existed in the supervising system, such as the scope is narrow, the executive method is unitary, and the striking force is not strong enough. To solve these problems, the supervising right should be granted by law when the case has to be registered; the checking right should be granted when litigant refuses to accept the compulsory implements like the prosecutorial search and detain, the prosecutorial advise right should be granted too when public interests might be sabotaged by the public security organization. The restraints from the current adjudicative power are those; eliminate illegal evident and legality review of the action of the public security organization. And the later one could be perfected by amend the administrative procedure law. There are many things to do to strong the supervising on investigation power, further clear the standards of elimination illegal evident, deny the evident which infringes the human living right, eliminate the evident which infringes the human health right and freedom. We have to abandon them unless the nation safety and state regime of people democracy dictatorship are sabotaged. We will make a comprehensive consideration to the other evident which have infringed the human rights, and then to make decision whether to use them or not.Chapter five describes the right to restrict police powers. Civil rights have original, constantly, specific and fundamental restrict to the police powers, which is specifically expressed in a relatively restricted rights of persons, right to counsel restraint and rights of the citizens oversight. In the exercise of police powers, public security organs must not only provide protection for counterpart right to life, liberty, property rights and other substantive rights but also procedural rights such as the right to know, the right to a hearing, right of defense and right to application for withdrawal, which in order to abide by the boundaries of police powers. Throughout protecting the counterparts’ active participation, guarantee the active participation of police powers to prevent the wanton. To expand the rights of the counterpart, the counterpart who have objections to the compulsory investigative measures, should be given the right to apply for reconsideration and review. The parties’ uneven qualities, as well as their disadvantaged position after the legal custody, determine the need for lawyers to provide legal assistance. To this end, the state should expand and protect the corresponding right to counsel. Citizens’ oversight powers are conferred by the Constitution. So citizen oversight of police powers in the jurisprudence has legitimacy, validity in practice. The public security organs should adapt to an open, transparent, and information technology under the condition of law enforcement environment, take the initiative to accept citizen oversight, promote an open and impartial investigation into the case of handling all types of events vigorously, and ensure that power exercised according to law.Chapter six discusses the subject of the police powers of self-restraint. A legitimate exercise of police powers, not only rely on a sound legal system, the external powers, checking power by right, the legal quality and professional ethics of the main has power, but meticulous standards of law enforcement and effective internal oversight is also very important. The legal quality of the police force should be effectively improved by strictly guarding a pass of enrollment strengthening the police legal training and professional ethics education, enforcing capacity to implement level examination and assessment system. Internal law enforcement standard is the middle part of the transition which is from laws, regulations and rules to behavior of police powers. It also offers an operational workflow, the evidence requirements and the discretion of the standard behavior of police powers to police law enforcement activities as an interpretative norm. Therefore, it has the power to regulate police behavior and to ensure the correct implementation of the public security organs function of the law. Arbitrariness in law enforcement practice, the larger areas and most vulnerable part of the problem, such as the response alarm, investigation and evidence collection, involving goods management, as well as disposal of group incidents, the authorities should develop an internal law enforcement standard, detailed enforcement procedures, standards of evidence, and discretionary criteria. The inspectors, legal, administrative supervision departments are an important force to oversee the police in the exercise of power. So it must have a clear idea of internal oversight, principles and priorities; establish a view that "law enforcement supervision is the best combination of points is the public security operations and team building; stick to "Legal system to lead the criminal investigation, and guide the investigation of law and order" and other concepts; establish a legal oversight authority; establish the principles that "discovery timely and effective redress, responsibility will study"; discover and correct the key links of police powers to run the offense, disciplinary offense. By integrating various types of monitoring forces to form a monitoring force, using of information technology and other scientific and technological means to improve the methods of supervision, the internal supervision of police powers to run real-time, dynamic, and enhance the effectiveness of internal oversight will be achieved.Chapter seven discusses the legal regulation of police powers to build the system. Legal Regulation of the police power of ideas and measures should be increased to the level of legislation to deal with. To this end, China’s police organization law, the relevant single law, the police procedural law, and the relative rights of the legal system relating to the contents of relief should be amended and improved. In the social transition, a change in duties of the police and political functions has been strengthened, and service functions have been further expanded. According to the same powers and responsibilities of the principle, public security organs should be given the right to bind the people with realistic possibility to harm society, the right to sample in compulsory to who have major violations of criminal suspects. At the same time, it is necessary to clarify the scope of administrative assistance for the implementation to reduce the generalization of police powers. To prevent the abuse of police powers, it is essential to modify and improve the system of police enforcement procedures; to clear the applicable conditions for preliminary investigations, the temptation to surveillance, monitoring and other investigative techniques; to improve the specific procedures, for example, approval procedures and remedies means mediation of civil disputes, norms, handle mass incidents; to raise the approval level in defamation and other sensitive cases. As for the improvement of the legal system of the counterparts rights relief, the focus is to broaden the rights of the police powers of the relative scope of relief and increase state compensation efforts made so that illegal or improper exercise of police powers which infringed the civil and social organizations receive a more effective relief.The last part makes a conclusion of the whole dissertation, emphasis the necessary and practicality to regulate the police power. And we have a great confidence to the legalization of police power in china. |
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