Research On The Mechanism Of Administrative Law Enforcement Agencies Transfer Suspected Criminal Cases

The Decision on Some Major Issues Concerning Comprehensively Deepening the Reform approved by the Third Plenary Session of 18th Central Committee of CPC came up with the reform idea of"Improving the mechanism of connecting administrative law enforcement and criminal justice",and The Decision on Some Major Issues Concerning Further Advancing Law-Based Governance approved by the Forth Plenary Session of 18th Central Committee followed such idea literally but changed"improving"into "consolidating"in expression.As the mechanism of connecting administrative law enforcement and criminal justice(hereinafter referred to as "connection of two rules")are both mentioned in the communiques of the two Plenary Sessions based on authoritative written and colloquial expressions,the importance that the central authorities of CPC attached to it is here to stay.However,it is also the reflection otherwise justifies many existing questions and puzzles in the process of administrative law enforcement agency's and criminal justice agency's"connection of two rules".The"connection of two rules"is a serials of complicated procedures including the connection between the transfer of suspected crime cases and the administrative investigation by administrative law enforcement agency and criminal investigation,the connection between administrative punishment and criminal penalty,and some other connections.Over that course,the transfer of suspected crime cases by the administrative law enforcement agency is a key procedure which serves as the main cause of the clog in the"connection of two rules".Improving the mechanism of administrative law enforcement agency's transferring suspected crime cases(hereinafter referred to as mechanism of transferring suspected crime cases)plays a significant role in advancing the reform on the mechanism of"connection of two rules".Based on that,this essay raises argumentations within six spheres.Part one,the emergence and development of the transfer mechanism of suspected crimes.The first is the cause of transfer mechanism.Referring to the linkage working mechanism that administrative law enforcement organs transfer suspected criminal cases found in administrative law enforcement to investigative organs for examination and timely initiate the criminal investigation procedure,the rise of the mechanism is mainly to respond to the demands of social governance,standardization of law enforcement and realization of justice.The second is the context of the promulgation of normative documents.The earliest normative document on the mechanism is the Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs(hereinafter referred to as the Transfer Provisions),followed by various organs such as public security,procuratorial,people's courts and administration conducting regulations of the problems revealed in practice through different forms.After more than a decade of exploration,the transfer of suspected criminal cases has gradually evolved from the initial regulation of market economic order to a full coverage of a variety of aspects,including the protection of food,medicine safety and environment,the supervision of public security,procuratorial,people's courts and administration organs to perform their duties in accordance with the law,as well as the strengthening of comprehensive social governance,which has played a role in promoting administration according to law and impartial justice.The third is the achievements of the practical organs.The administrative law enforcement organs have carried out the exploration of the optimization of the transfer procedure from perspectives of choosing the appropriate transfer time,clearly dividing the transfer steps and defining the state of law enforcement.The investigative organs have explored from perspectives of the prudent opening of investigative procedures and moderation of "back-door investigation".Procuratorial organs have explored the strengthening of transfer supervision by expanding various external supervision methods.Among the above methods,some are suitable for extensive promotion because of their rationality and legitimacy;Some are effective yet assume a number of potential risks,thereby have to be transformed;While some others are ahead of schedule and require the support of host law.Part two,comparison and reference with the transfer mechanism of the suspected criminal case abroad.The number of administrative crime increases with the development of market economy.Some mature mechanisms to regulate market economy are possessed by developed countries,where the market economy assumes an earlier start than that of China,while the transfer mechanism of suspected criminal cases is included as one of them.In view of the fact that such mechanisms are rooted in the political soil of the countries and closely related to their basic systems,this paper will only select three problems existing in China's transfer mechanism to be solved urgently and are comparable with the situation abroad to study rather than carrying out a panoramic discussion of such mechanisms overseas.The three problems are:The role of procuratorial organs in the transfer of cases,the restrictions on the entry of administrative evidence into criminal proceedings,and the regulation of cross-application of administrative power and investigative power.The first is the transfer mechanism in common law system countries.As for the first question,the police and administrative organs of Britain are allowed to bring a public prosecution to the court when the case is relatively minor and the parties involved have confessed their guilt.Such decentralization of the right of public prosecution weakens the decision-making power of the procuratorial organs in the transfer process;The roles of the procuratorial organs in the United States mainly include responding to public concerns,conducting investigation on certain suspected crimes related to the public interest and deciding whether to prosecute through a comprehensive measurement of the interests of all parties.As for the second question,in Britain,party statements and witness testimony collected in administrative proceedings can be used as rebuttal evidence for court cross-examination;Without deliberate distinction between administrative evidence and criminal evidence,the focus of evidence review is placed on the exclusion of illegal evidence in the United States.With regard to the third problem,in Britain,the comprehensive functions of writ system,illegal evidence exclusion system and police complaint system have promoted the formation of the pattern that investigators "can't,won't and dare not" to cross-apply the two powers.In Berg case,the Supreme Court of the United States identified the police's conduct of collecting criminal evidence under the pretext of administrative investigation as one of the two situations of "evasive search" and proposed a method of judging the nature of conducts by its purpose.The second is the transfer mechanism of civil law system countries.For the first problem,before deciding whether to prosecute suspected crimes,prosecutors of France and Germany will make the optimal choice through comprehensive consideration of factors including economic development,political considerations,national image,etc..As for the second problem,in France,prosecutors are allowed to have access to any material obtained by the administrative organs and will approve the eligible ones to enter into criminal proceedings after screening in accordance with the rules of criminal evidence;Influenced by the pursuit of substantive justice theory and strict proof theory,in the case that the witness has deceased or his/her whereabouts are unknown,the testimonies collected in the administrative procedures of Germany are allowed to be applied to criminal proceedings and the appraisal reports of administrative organs are allowed to be read out in court on condition that the producer does not appear in court.With regard to the third problem,under the multiple constraints of administrative courts,procuratorial organs and pre-trial judges,the administrative and judicial police organs of France are left with only small discretion and there is little room for cross-application between administrative and investigative powers;In Germany,the administrative and judicial police demonstrate clear boundaries in terms of their functions and identities,in which the former is liable for the maintenance of social order and the latter is for criminal investigation.It is difficult for investigators to assume the administrative investigation power in investigating criminal cases.The third is the transfer system of the mixed law countries.The first is that the Italian procuratorial organ can not only passively accept the report of a case,but also actively find the criminal clue,and direct the judicial police to carry out preliminary investigation.Russian procuratorial organs pay more attention to the supervision of administration and law enforcement,by the application of the provisions of administrative penalty cases and if the judgment of the nature of the case is legal,to ensure the normal operation of the transfer work.Although the Japanese procuratorial organ can direct the police to carry out investigation,its discretion to decide whether to transfer and prosecute is restricted by the anti-money system,same as the inspection and examination committee.The second,Italy's evidence preservation procedures for administrative oral evidences provides a possibility:if testimony issued in administrative proceedings by witnesses is very important to prove the facts and the witnesses may fall foul of the law before trial,the procuratorial organs can apply for the judge to open evidence preservation procedure,the witness is required to retestify and put on record.Japan pays attention to the rebuttal function of the evidence of administrative words,that is,when the statements made by the parties and witnesses in the administrative and criminal procedures are inconsistent,the statements in the previous procedures rebuttal the statements in the subsequent procedures,so as to achieve the result of separating the false from the true.The third,the judicial police in Italy are dually supervised by prosecutors and the judge in advance in the investigation,to use the name of the administrative law enforcement to collect criminal evidence has been very difficult,plus Italian generally set up administrative court to administrate the routine work of law enforcement,objectively also rejects the cross for two kinds of power.Russia's provisions on the grant of preliminary investigation power and the refinement of procedures provide a legal way for investigators to preliminarily investigate the case,obtain starting evidence and weigh the advantages and disadvantages,which also replaces the role of the cross-application of the two kinds of power.Japan's administrative writ system determines that if the administrative procedure is substantially related to the criminal procedure,then such a procedure should be subject to obtaining a judicial writ before proceeding,which also makes the attempt of investigation organs to evade judicial control under the guise of administrative law enforcement invalid in some degree.The fourth is the comparison and reference of foreign experience.Comparing the Chinese and foreign transfer system,French and German's prosecutors in the case of supervision and guidance,countries such as Britain,the United States open attitude towards administrative evidence in criminal litigation,the United States,Japan,the "backdoor investigation" way of judging method and regulation of the transfer system have the use of reference to perfect our country's case.In order to strengthen the power of procuratorial organs in transferring cases,we should enrich the types of the right of inspection,expand the objects of the right of inquiry,enhance the effectiveness of the right of suggestion and strengthen the power of supervision.Starting from increasing the types of administrative evidence that can be used in criminal proceedings,the "three characteristics of evidence" is taken as the criterion to judge whether administrative evidence can be used in criminal proceedings.From objective view of "backdoor investigation" in the pursuit of substantive justice,the special function of both learning Japanese for "backdoor investigation" regulation,and don't like the United States to negate "backdoor investigation",while dealing with the"backdoor investigation" startup subject,the criteria,application procedures,responsibility,relief way of unified regulation,make the investigation organ to have rules to follow.Part three,the transfer and guarantee of suspected criminal cases.The transfer of the parties,the property and the evidence involved constitutes an organic whole of the transfer of suspected criminal cases.Suspected criminal cases should be transferred to the fulfillment of suspected criminal cases,the construction of the transfer platform for suspected criminal cases provides support and guarantee for the transfer of cases.The first is the transfer of the parties involved.The parties involved in the case are the ultimate bearers of the legal responsibility.Transferring the parties involved to the investigative organs will help them complete the task of forcing suspects to appear in the case.in view of the problems such as extending the transfer period as a means of punishing the parties and has obvious negative effects,it is suggested to implement the transfer system for the parties involved in the case,forbid the transfer of relevant materials of the case in advance,and the behavior of handing over the parties involved after 48 hours.When law enforcement personnel encounter abuse,threats,beatings and other extraordinary events,undertake psychological counseling for them,in order to prevent law enforcement with emotions and other ways to solve.The second is the transfer of the items involved.The property involved in the case includes the properties of the victims,illegal gains and unqualified products,etc.Transferring the property involved in the case will help the judicial organ to use its value to repair the social relations damaged by the behavior of the party involved.In view of the selective acceptance of property involved in a case by the public security organs and the disputes between the administrative law enforcement organs and the public security organs over the payment of expenses,it is suggested that the public security organs should assume the main responsibility for the preservation and disposal of property involved in a case,the administrative law enforcement organs should assist the public security organs in the preservation and disposal of property involved,and the local governments should play a comprehensive role to regulate it.The third is the transfer of evidence involved in the case.The evidence involved in the case is the basic material of the formation of the evidence chain.The transfer of the involved evidence helps the judicial organ to determine the attribution of criminal responsibility.In view of the problems such as whether the administrative verbal evidence which accords with the "three characteristics of evidence" can enter the criminal proceedings,what remedial measures should be adopted to dilute the subjective color of the verbal evidence,and what form of special physical evidence to enter the criminal proceedings,it is suggested that the problems should be solved from reasonably defining the applicable scope of direct transfer of administrative verbal evidence,referring to the collection of administrative verbal evidence of criminal standard specification,and clarifying the collection mode and transfer carrier of special physical evidence.The fourth is suspected criminal cases should be transferred to full implementation.There are amount of factors that relate to the quantity and quality of the transfer of cases and affect the full implementation of case transfer,including the traditional factors such as local protectionism and departmental benefits,as well as the new factors such as inadequate delegation of authority,insufficient security of funds,and so on.For this reason,it is suggested to establish investigation departments for administrative law enforcement agencies in the field of more administrative crimes.In addition,the funds of the administrative law enforcement agencies should be fully protected,and the return of forfeiture should be strictly prohibited as a means of financing and reward to ensure the full implementation.The fifth is the construction of the transfer platform for suspected criminal cases.In order to integrate the information resources and improve the transfer efficiency,the network platform with the function of transferring suspected criminal cases has been established in various places.This kind of platform has played an active role in the smooth communication channels and the formation of law enforcement forces and so on.Such a platform can only play a role in a certain region,which hinders the coordinated promotion of the case transfer throughout the country.Therefore,it is suggested to construct a national uniform transfer platform from three aspects:unitary technical standard,perfect transfer function and input information confirmation,so as to involve all the administrative crime charges at all levels of the relevant organs into the transfer platform.Part four,the acceptance and disposal of suspected criminal cases.Compared with the degree of concern of the administrative law enforcement agencies in the field of case transfer,such as "replacing punishment by law" and "unmoving case",the phenomenons that the organ of investigation appears the "backdoor investigation","non-standard case feedback","cross-use of coercive measures"in the above-mentioned fields have aroused a little attention in the theoretical circle and the practical circles.However,the violation of human rights and the destruction of transfer order by these phenomena,thus it is necessary to be paid more attention.The first is to accept the specification of the special cooperation mode after the cases.Some investigation organs carry out "backdoor investigation" beyond the necessary constrains to break the law for profit-seeking,avoid risks,and complete the examination,resulting in a certain potential harm.In view of the potential harm of "backdoor investigation",it is necessary to set three constrains:no "backdoor investigation" shall be carried out after the criminal case has been filed,no interference in the normal law enforcement of the administrative organ,and no infringement of the property rights and interests of the parties concerned.At the same time,it should be regulated from the aspects of strengthening the compulsory sanction power of procuratorial organs,maintaining the relative independence of administrative law enforcement departments,strengthening the obligation of administrative law enforcement personnel to testify in court,and appropriate delegation of preliminary investigative powers to investigative organs.The second is the norm of the compulsory measures change after accepting the case.Some investigative organization cross-use administrative coercive measures and criminal coercive measures in order to achieve the purpose of "convenient enforcement" or evading judicial review.For the above problems,we can consider taking the time of the detention to interrogate and administrative detention into criminal detention time.We judge the nature of the compulsory measures according to the purpose of the behavior,and reform the current assessment mechanism to crack down on such measuresThe third is the norm of feedback on the cases' progress after accepting the case.Some investigative organizations do not give the cases' progress feedback to administrative organizations for law enforcement,which not only frustrates the enthusiasm of the latter to transfer cases,but also makes the administrative law enforcement passive.It is suggested that the investigation organizations should establish a list of responsibility for periodic feedback of the case,the procurator should supervise the case feedback,and the administrative law enforcement organizations should regulate the case feedback.Standardize the case feedback through the above three aspects.Part five,the restriction and supervision on the transfer of suspected criminal cases."The things in the world are not difficult to legislate,but it is difficult to enforce the law." And to guarantee the "law must enforce",we must rely on a firm law belief inside and strict multiple supervision outside,which is also applicable in the field of suspected criminal cases transfer.Of course,strengthening supervision is not a castle in the air.It requires strict power constraints and moderate information disclosure to provide strong support for it.The normative power restriction can distinguish the boundaries of duties among various public authorities and reduce the space for mutually making excuses;moderate information disclosure can expose the operation of power to the sun and make the hidden rules invisible.The First is the power restriction on the transfer of suspected criminal cases.For the problems of power restriction,such as the absence of the leading department when organize to transfer cases,and it is difficult for various departments to exert their respective advantages,the selfish departmentalism has the upper hand.It is suggested that we should determine the judicial administrative department as the lead organizer for case transfer;the supervisory committee is responsible for accountability investigation and uniformly perform Party discipline,political discipline and national law;procurator is responsible for legal supervision,supervising the legality of law enforcement and judicial activities;administrative organization for law enforcement and public security organization is responsible for the specific way of carrying out,as both ends of the transfer mechanism.The Second is the multiple supervision on the transfer of suspected criminal cases.For the problem of supervision authority cannot grasp the status of administrative law enforcement in the transfer supervision,Their inappropriate inertia leads to weak supervision effect.Moreover,they fail to make full use of overall advantages with various supervisory forces.It is suggested that we should expand the source of information from the supervisory authority to improve the pertinence of supervision from case to person,and to enrich the form of supervision.The third is the disclosure of information on the transfer of suspected criminal cases.For problems such as the publicity subject of transferred information is not clear,the opened boundaries are not easy to grasp,the public media is not clear and so on.It is suggested that we should start with the following aspects:determining the elements of information disclosure,strictly abiding by confidentiality regulations,focusing on protecting personal privacy and open transferred information promptly,in order to enable citizens to see,understand and supervise the transfer process of suspected criminal cases.Part six,advice on legislation(Conclusion).After ten-odd years' practices and explorations,the transfer of suspected crime cases by the administrative law enforcement agency has developed from regulating market economic order at its early stage,bit by bit,to protecting food and drug safety,to cracking down on the crimes sabotaging environmental protection and resources conservation,to supervising the lawful duty-fulfillment of national agencies and organs,and to strengthening efforts in the comprehensive governance of society.It,to some extent,has contributed to promoting law-based administration of government,equity and transparent justice.However,from its guiding thoughts to hand-on practices,responsibility subject to power boundaries,evidence adoption to management of cases-related belongings,supervision conducting to liability pursuing,as to the mechanism of transferring suspected crime cases there are only several administrative rules or judicial interpretation available to comply with.Such disadvantages about legislation as low level,redundant body,ambiguous content and inadequate rigidity can be found.It is suggested that,taking absorbing the experience of local legislation,improving the level,confirming the key content and specifying the accountability-pursuing system into preliminary consideration,the Standing Committee of the National People's Congress should enact a law targeting at the standardization of transferring cases.