Research On Investigative Diversion Mechanism

At present,there are three pairs of contradictions in law enforcement and judicial practice,namely,the dislocation between the handling effect of some criminal cases and the public's new demand for fairness and justice,the contradiction between the growth of the number of procuratorial and judicial criminal cases and the limitation of judicial resources,and the deviation between the phenomenon of dark figure of crime and the reform requirements of the public security case filing system.Investigative diversion mechanism is the product of attempting and exploring to solve the above three contradictions,which has been established in China's criminal proceedings,but in practice,the mechanism has exposed all kinds of problems,and has,to some extent,affected the full play of its effectiveness.In addition,there are some problems to the mechanism in the academic and practical circles,such as shallow understanding of the mechanism,weak systematicness,mixed application of investigative diversion and investigative diversion mechanism,equivalent use of procedural diversion and investigative diversion,separation from the practice of investigative diversion in our country,failure of incorporating the latest achievements in judicial reform,and low level of consensus,so it is necessary to strengthen the research on this mechanism.The body of the article is divided into seven parts: introduction,chapter one,chapter two,chapter three,chapter four,chapter five and conclusion.The introduction introduces the causes of determining the investigative diversion mechanism as the research topic,lists the theoretical and practical significance of in-depth study of the mechanism,and makes a review of the current domestic and foreign research.At the same time,the research ideas are clarified,and the research methods such as system theory method,empirical research method and comparative analysis method are planned to be used to conduct in-depth discussions on the connotation and denotation,existing basis,specific situation,causes of problems and path improvement of the investigative diversion mechanism,and to make innovative achievements in the logic of justification,research methods,cut-in angles and improvement measures.In addition,the paper points out that the research may be insufficient in the use of relevant data,the mastery of foreign language materials and the discussion of some problems.The investigative diversion mechanism is not water without a source and a tree without roots.The first chapter puts forward that in order to study this mechanism,it is necessary to realize that the mechanism is closely related to the investigative diversion,but not equivalent to the concept.From the perspectives of definition,identification of related concepts and classification,the connotation and denotation of the investigative diversion should be further clarified.On this basis,the investigative diversion mechanism is discussed from three dimensions: semantics,types and elements,and the meaning of the mechanism is further clarified,and the corresponding element analysis framework is formed.At the same time,regardless of the specific and direct basis in the form of legal provisions or normative documents,this mechanism may have a source relationship with the relevant provisions of the General Provisions of the Criminal Law and the General Provisions of the Criminal Procedure Law,and may also have a formal conflict relationship.Combing the former can form a positive argument for the mechanism,and explaining the latter can form a reverse argument,which helps to rationalize the relationship between the mechanism and the formal conflict clauses.The second chapter proves the basis of the existence of the investigative diversion mechanism from the two aspects,namely,theoretical basis and practical value,so as to provide strong support for further basis proof,condition analysis,problem inspection and mechanism improvement.Specifically,firstly,it is necessary to recognize that the culture of harmony,penalty integration theory and utilitarianism have a profound impact on the mechanism,which together constitute the theoretical basis of the mechanism.Secondly,it is necessary to recognize that the mechanism has already existed in the practice of criminal litigation and has played a certain positive role,which is closely related to its own practical value.That is to say,the mechanism can realize the value balance between justice and efficiency in criminal cases,realize the balance of interests between the parties,realize the comprehensive improvement of investigation work,and realize the upgrading of social governance model.The third chapter focuses on five kinds of investigative diversion procedures and four kinds of the results of investigative diversion procedures,and analyzes the system status of the investigative diversion mechanism in China from the perspective of legislative analysis.Among them,this chapter emphatically introduces a super-standard result of investigative diversion procedures — withdrawal of deporting for checkup prosecution.Then,taking several regions as examples and combining relevant data,this chapter investigates and analyzes the practical situation of the investigative diversion mechanism in China,which truthfully shows the application process and status of this mechanism in the investigative practice,reflects the actual operation status of this mechanism,and lays the foundation for further problem exploration and cause analysis.Finally,by comparing each investigative diversion procedure and each result of investigative diversion procedure in China horizontally,we further deepen the understanding of different investigative diversion procedures and different results of investigative diversion procedures,and clarify the internal relationship and operation context of the investigative diversion mechanism in China.Through the above practical investigation of China's investigative diversion mechanism,the fourth chapter points out that there are still many problems in this mechanism,which are manifested in the insufficient interaction between the diversion subjects,the two extreme tendencies of the decision(suggestion)subjects,the alienation of investigative diversion procedures and results of investigative diversion procedures in practice,and the unsatisfactory effect of the investigative diversion.On this basis,the causes of the problems are further analyzed,and it is proposed that the emergence of these problems is closely related to the deviation of the concept of diversion subjects,the ambiguity or even blankness of diversion provisions,the lack of difference in the standard of proof of diversion cases,the unclear relationship between diversion procedures & the lack of a sound supporting guarantee mechanism,and the few types of the results of diversion procedures & the lack of the evaluation mechanism.In order to effectively solve the above problems,it is necessary to integrate the existing investigative diversion mechanism,check for its weaknesses and omissions,make up for its deficiencies,and continuously improve and optimize it.Based on the analysis of the causes of the related problems and the differences and similarities between China's investigative diversion mechanism and overseas investigative diversion mechanism,the fifth chapter draws on the useful experience of countries of the two legal system,and tries to design the future development prospect of the investigative diversion mechanism.This chapter puts forward that we should consider the improvement of the investigative diversion mechanism in China as a whole,namely,adhering to the guidance of "the dynamic balance of justice and efficiency",focusing on the key of "the standardization and optimization of the investigative diversion right",consolidating the foundation of "the deep participation of the parties",and following the thinking of "the retention and modification of the existing mechanism".On the specific level,this chapter suggests that the investigative diversion mechanism can be improved and optimized from three aspects: diversion subjects,diversion cases,diversion procedures and procedural results.Specifically,it is to strengthen the interaction between decision(suggestion)subject,participation subject,supervision subject and other diversion subjects,constantly improve the burden reduction and speed-up effect of diversion cases from the perspectives of proof standards,guidelines,methods and the mechanism for rapid case settlement,and optimize diversion procedures and procedural results by reforming diversion procedures,eliminating the ambiguity of selecting applicable procedures,clarifying the choice of treatment methods and ranges,improving local implementation rules,and doing "addition and subtraction" to diversion procedural results.Based on the whole thesis,conclusion states that: Firstly,the systematic integration and comprehensive improvement of the investigative diversion mechanism have become the general trend,and become the only way for China's criminal procedure to be modernized,democratized,scientific and intensive.Secondly,the mechanism is the profound reform of the judicial concept and the concept of penalty,and is the optimal allocation of limited litigation resources,involving the department for public security,the department for procuratorial work,the the department of the court and the department for justice,it is the need for each department to update their thinking,perform their own duties and carry out sincere cooperation;Thirdly,it is necessary to fully consider the current situation of our country's closed and concentrated investigative power,the uneven quality of investigators,and the high demand from the public to strengthen the restraint of investigative power.We can in no way focus on expanding the power of diversion of investigations.Instead,a prudent strategy should be adopted.We should closely focus on the problems in practice,and standardize and optimize the power of diversion of investigations.