Research On Cohesion Between Investigation Of Duty Crimes By Supervisory Organs And Criminal Justice

The reform of the national supervision system has changed the criminal procedure system of Our country from unitary system to dual system,which is regulated by different laws,thus causing the problem of "the connection of law and law".The amendment of the criminal Procedure Law is an emergency measure and a unilateral response when the problem of "connecting the law with the law" has not been fully exposed and the solution lacks sufficient deliberation.In addition,the transformation from static norm to dynamic operation also involves the linkage between the new system and criminal justice at the operational level.Only by solving the specific problems from the static and dynamic aspects can a complete and effective cohesive mechanism be established between investigation of duty crimes by supervisory organs and criminal justice.At present,the research on the connection between investigation of duty crimes by supervisory organs and criminal justice is highlighted by the lack of systematic research and the scarcity of empirical research.According to the research idea of "total-section",this dissertation strives to achieve three goals: first,expand the research idea of criminal procedure theory and enrich the research content;Secondly,it abstracts the system resources to promote the effective connection between investigation of duty crimes by supervisory organs and criminal justice from the supervision system and the related system outside China.Third,it provides a relatively feasible solution for the effective connection between investigation of duty crimes by supervisory organs and criminal justice in China.In terms of research methods,this dissertation focuses on the rational application of historical research methods,comparative research methods,literature research methods and empirical analysis methods.In addition to the introduction and conclusion parts,this dissertation includes five chapters.The first chapter is an overview,which involves the definition and discrimination of core concepts,research objects,the establishment of basic principles,so as to lay a foundation for the follow-up research.The argument about the nature of job-related crime investigation aims at balancing the two basic values of corruption control and human rights protection.There are differences in the power source,subject and object of application,measures taken,characteristics of power,supervision and relief between the power of investigation of duty crimes by supervisory organs and investigation of other crimes by other State organs.The connection between investigation of duty crimes by supervisory organs and criminal justice includes two aspects: first,the external form,the process of mutual connection,and the state of mutual connection;Second,although there is no connection in the external form,flow,but in the spirit of the essence of the need for mastery.To realize the effective connection of both with Chinese characteristics must adhere to establish mechanism of supervision of duty crime investigation system principle,adhere to the supervisory organ and the judicial,procuratorial organs,law enforcement agencies to cooperate with each other,mutual restriction principle,adhere to the effective combination of punishment of duty crime and guarantee the rights and interests of the principle,adhere to the principle of centering on the trial.The second chapter is the connection between the supervision and jurisdiction of duty crime and the criminal jurisdiction.It makes a comprehensive analysis of the connection between the supervision and jurisdiction of the criminal prosecution law from the perspectives of the functional jurisdiction,level jurisdiction,regional jurisdiction,jurisdiction transfer and the jurisdiction of the assigned agencies.The supervisory organ's power of investigating duty crimes is of subjectivity and special responsibility,while the procuratorial organ's power of investigating duty crimes is of legal supervision and supplement.In the case of conflict,the two should adhere to the principle of "general supervision and jurisdiction as the priority",and also adhere to the principle of "more appropriate" and "consensus".Where a supervisory organ,a procuratorial organ or a public security organ have improperly exercised jurisdiction over a case that should have been under the jurisdiction of the other party,different handling methods shall be adopted according to the stage of improper jurisdiction.We should establish a comprehensive principle of handling cases involving each other,adhere to the principle of "each performing his own duties,general supervision and investigation as the main",reasonably define the connotation of "the main",and adopt two ways to realize the implementation of concurrent case jurisdiction and separate case jurisdiction.The regulation on the subject of the natural person in duty crime in the Supervision Law is the refinement and supplement of the Criminal Law.The conflict between the regulation on the subject of duty crime unit and the Criminal Law is difficult to be reconciled,which can be remedied by revising the Supervision Law or practice.The crime of criminal law should be properly interpreted so that the staff of supervisory organs become the subject of duty crimes such as extorting confessions by torture.Supervision and examination and prosecution investigation jurisdiction,the jurisdiction of the trial to determine the level of the standard is not the same,the difference in the position of supervisory organs investigation cases need to solve the problem of the jurisdiction of the two levels,the first is before the case,within the supervisory organs shall,in accordance with the persons being investigated the cadre management authority to determine level of duty crime investigation jurisdiction;The second time is when the investigation is coming to an end,the supervisory organ decides,through consultation,the level of jurisdiction for examining the prosecution and the trial,based on factors such as the possible prison term and the impact of the case.On the basis of determining the regional jurisdiction of duty crime supervision and investigation based on administrative division,we should also add the standard of the place where the person under investigation works.There is no correspondence between the two,which does not necessarily lead to the judicial organs and procuratorial organs adopting the promoted jurisdiction after the supervisory organs adopt the promoted jurisdiction.Superior supervisory organs in the designation of jurisdiction,to make a comprehensive consideration,the influential factors of the case should not be the designation of jurisdiction as to the handling of the only means,for the supervision of the investigation stage has designated jurisdiction over the case,if you want to specify the prosecution or trial jurisdiction,required by the superior supervisory organs and procuratorial organs,judicial organ to negotiate at the designation of jurisdiction.The accredited offices shall,in accordance with their authorization,have the power to investigate duty crimes;However,the power to investigate duty crimes of the accredited agency should not conflict with the power to investigate duty crimes of the dispatched agency.When the power conflicts with the power to investigate duty crimes of the local supervisory organ,different methods should be adopted according to the specific situation.The dispatched organ shall,after consultation with the judicial organ and the procuratorial organ,define the undertaking unit that is responsible for prosecuting and adjudicating the duty crime cases investigated by the dispatched organ.The third chapter is about the connection between the detention measure and the criminal coercive measure,which deeply studies the basic connotation of the detention measure,the applicable conditions,the subject of examination and approval,the duration of the detention and other elements,as well as the connection with the enforcement of the criminal coercive measure and how to effectively protect the detainee's right to obtain the help of lawyers.Detention is a new compulsory investigation measure to restrict personal freedom created by the Supervision Law.It is different from the "two rules" and other criminal compulsory measures such as detention,arrest and designated residential surveillance.Because the law of supervision did not create a system of compulsory measures with different degrees of restriction on personal freedom,the lien fell into a dilemma when it was applied.The conditions of detention should be improved.The detention is only applicable to duty crimes,and the two conditions of "the object of detention may be sentenced to fixed-term imprisonment or more punishment" and "social danger" should be met.The director of the supervisory commission shall decide whether to have a lien for general cases,and for major,difficult and complicated cases,the supervisory organ shall decide whether to have a lien after collective discussion.As for the management cadres of the Party committee at the same level,before making an important substantive or procedural decision,the supervisory organ should ask the discipline inspection organ for instructions and report to the principal heads of the Party committee at the same level,rather than report to the supervisory organ for "approval".Where the supervisory organ discovers other crimes committed by the person under investigation,it shall no longer recalculate the term of detention.Supervisory organs shall give priority to filing cases and take lien measures for mutual involvement cases in which the investigation organs and other organs do not take criminal compulsory measures;There is no need to remove criminal coercive measures or use lien measures for mutual involvement cases where criminal coercive measures are taken by investigation organs.Precedent detention should not be the only choice for the transformation of lien and criminal coercion measures,and the system of coercion measures with different degrees of restriction on personal freedom should be established.A detention facility under the unified management of provincial supervisory organs will be set up to focus on the detained persons under investigation and those involved in the case.Lawyers should be allowed to intervene in the supervision and investigation of duty crimes by amending the supervision law or making supervision laws and regulations,but lawyers are not defenders in the sense of criminal proceedings.The time of the lawyer's intervention shall start from the date when the person under investigation is first interrogated or the lien measures are taken against the person under investigation;In cases of especially serious bribery crimes,lawyers should get permission from supervisory organs to meet with detained suspects.The fourth chapter is the connection between the supervision and investigation procedure of duty crime and the examination and prosecution procedure,which studies from the aspects of early intervention investigation,case trial,returning supplementary investigation,non-prosecution,and putting forward suggestions of lenient punishment.Early intervention investigation should be limited to major,difficult and complex cases,and a diversified evaluation standard system should be constructed.Generally,it should intervene after the case investigation is concluded and transferred to trial,and if necessary,it can intervene after the supervisory organ files the case.To intervene in accordance with the written invitation of the supervisory organ or,when necessary,to intervene on its own initiative;After the procuratorial organ gets involved,it should put forward feedback suggestions in its name,which is not equivalent to examining the prosecution opinions.The case handling department shall try the case in accordance with the Supervision Law and relevant criminal laws,and urge the case handling department to classify and transfer the case according to the property characteristics involved.The return of supplementary investigation is the right of investigation attached to the examination and prosecution,and the circumstances under which supplementary investigation can be returned or supplementary investigation can be conducted by themselves can be detailed according to the different problems existing in the case.The case hearing departments of supervisory organs undertake the return of supplementary investigation cases in a unified manner.In principle,if the evidence is insufficient,the non-prosecution shall return the supplementary investigation twice,and only return the supplementary investigation once in special circumstances;If the supervisory organ considers that the procuratorial organ's decision not to prosecute is wrong,it shall apply for reconsideration to the procuratorial organ at the same level in accordance with the principle of reciprocity at the same level.Criminal law and relevant judicial explanation about surrendered merit,frankly,after gifts,such as the regulation from the aspects of physical specification for the light punishment suggestion system provides the system support,pleaded guilty to criminal procedure law and relevant judicial explanation about forfeit their case applicable speed cutting process,the summary procedure,simplified ordinary procedure review provisions as provided from the aspects of program specification system support;To some extent,the suggestion of lenient punishment can be regarded as the reflection of the will of the national supervisory organ in the case.It has the ability to influence the subsequent sentencing suggestions and judicial decisions,but it depends on the comprehensive review and litigation support of the judicial organ.The supervisory organ should weigh the overall situation of the case to decide whether to propose a lenient punishment or not,and can only make a general recommendation.We should draw lessons from the practice of some judicial organs in the trial of the system of leniency for pleading guilty to establish an incentive mechanism and a step-type sentencing concession mechanism that the earlier the pleading guilty is,the more leniency is allowed.The last chapter is the connection between the supervision investigation of duty crime and the criminal justice evidence system,which involves the study of the requirements and standards of the evidence of supervision investigation of duty crime,as well as the connection of the evidence ability and the application of the special evidence system.Supervisory organs shall collect,fix,examine and use evidence in accordance with the provisions of the Supervision Law,but they shall also abide by the provisions of the Criminal Procedure Law.The goal of effective anti-corruption supervisory evidence in criminal litigation proof ability need to be acknowledged,do not need to monitor a case for the standard,the ability to distinguish between monitoring survey to collect oral evidence,the supervisory organ at a preliminary verification phase of evidence and the victim statements,expert opinion and an inquest or examination,to identify the record with evidence,such as investigation,experimental ability.It is necessary to clarify the types of illegal evidence in the supervision and investigation of duty crimes,and establish compulsory exclusion rules,discretionary exclusion rules and modifiable exclusion rules.Repeated confessions extracted by torture from persons under investigation should be excluded.The application scope of the whole process audio and video recording system should be extended to the interrogation of important witnesses and the conversation of the persons under investigation in the preliminary examination stage.The sound recording and video recording have the ability of evidence in the sense of substantive law and procedural law.There is no need to transfer with the case,but effective measures should be taken to solve the problem of transfer;Try to play audio and video recordings at pretrial meetings.An investigator testifying in court has the same role as a witness in court;The investigators shall explain in court the course of solving the case,the source of evidence,the authenticity or legality of the evidence,and shall be subject to interrogation by both sides of the prosecution and the defense as well as the court.The explanatory materials signed by the investigators and affixed with the official seal shall not be used to replace the investigators in court.Both the prosecution and the defense enjoy the right to start the investigators' court proceedings.The prosecution's behavior is essentially to fulfill the burden of proof,while the defense's behavior is essentially to exercise the litigation rights.