Establishment Of Judicial Review In China's Investigation Procedure

Judicial Review is a basic feature in modern law-governing society. In criminal litigation, the court, as the sole subject to exercise right of judicial judgment, will review and restrict, with its own authority and fairness, compulsory investigation measure taken by prosecuting organs on behalf of government, so as to keep balance between State power and individual rights. Based on this point, the article analyses the deficiency of current model for investigation control, and holds that judicial review should be established in our country.The whole article is divided into four sections. In the first section, the article introduces the varied models for investigation control overseas, pointing out that judicial review is the common feature in both civil and Anglo-American law system countries. Given the intrinsic roles conflict for procuratorate to exercise investigation supervision, it is hard for it to take both roles fairly. Therefore, judicial reform in China should be directed with establishment of a complete system of judicial review. The second section includes definition and content of judicial review. It is pointed out that judicial review includes judicial authorization and judicial relief. Both judicial authorization and judicial relief are related and constitute necessary parts of judicial review.The third section illustrates the theoretical foundation for judicial review and necessity to establish such system in China.The fourth section details judicial review to be set up in China. First, the subject to exercise right of judicial review. By analyzing functions incorporated into the subject, the article comes to conclusion that independent system of investigation judge should be established in our country. Second, the object of judicial review. Such object includes compulsory investigation measures to restrict personal freedom such as arrestment, detention and custody, and measures to save evidence from damage such as search and attachment. The article illustrates application of judicial review in different investigation measures and puts forward suggestions for reform in China's current compulsory investigation measures. Finally, right relief under judicial review. The author holds that the system of exclusion of illegal evidence should be established as procedural sanction for any action violating judicial review, which will eliminate interest-driving mechanism for illegal investigation.The end of the article is a summary. The author therein again emphasizes the necessity to establish judicial review, pointing out that with this system, the court will play a role in resolving social disputes.