Argumentation About The Judicial Domination Of The Investigation Procedure

Investigation action refers to different special surveys and compulsory measures which are made to collect and find evidences and save the suspects by the investigation organs. Different investigation actions bind from beginning to end, and form a complete investigation procedure. Investigation procedure is a kind of state power application procedure which can affect the civil rights most profoundly in normal social conditions. Making full use of state power, especially the state compulsory capability is the most important feature of criminal investigation procedure. But the rational and necessary existence of investigation rights can't ensure that all the investigation actions are philanthropic acts. Power as the conditions and backing that the state fulfill its guarantee rights obligations, may cause the state deviates from its obligations, which is to say that power sometimes may be dangerous in approaching the rights unequally, even infringing them unlegally. That the idea of guarantee of human rights and the experience of innumerable judicial mistakes and wrong investigations in China and abroad shows it must be balanced between the necessity of investigation and the requirment of civil rights ensurance, and must ensure the human rights in the investigation procedure. But to protect the rights of theman who is accused from the investigation power, it can neither depend on self resistance, nor the investigation organ and investigator to protect the civil rights. Because sometimes the same authority is busy in defending interests of state, sometimes throw it aside and is busy in holding justice, which is obviously unharmonious, and is also contradictory to the law of psychology. Proceeded from fair accusing and protecting, the power of restricting investigation righ-ts to protect human rights should be distinguished from the initiative of investigation power, and judicial powers have passive and negative factors which just suits the needs of the preceeding requirements. So we can use judicial powers to condition investigation powers. Which is the basic ways to prevent the investigation powers from being abused, and protect freedom and rights. The human rights during the investigation procedure is the accused citizen's rights according to the development track of human rights and the United Nation Charter of Human Rights. But the history facts show that human rights which are protected by the investigation procedure are not only the rights of suspects and defendants, more important is that it can protect all the citizen' s rights. Controlling the investigation procedure with judicial power is to divide compulsory investigation powers into power to apply and power to make decisions, and entrust each of them different main body of proceedings, which has restrained the possibilitythat investigation organs abuse compulsory investigation means because of objective needs. The form of control investigation procedure in effect currently in our country is the control within the investigation organ and the restriction of procuratorial organ, but the power-dividing organ which is possessed by judicial control doesn' t exist, and that is the essential reason why the investigation power can't be conditioned effectively, and is abused seriously. For this reason, I propose my own suggestions about judicial powers controlling investigation procedure and the interralatedconstruction of system in our country by this thesis occording the experience of the countries rule by law.