The Rational Consideration And Reform Discussion Of The Procedure Of Filing Criminal Cases

A independent stage of the procedure of filing criminal cases beforeinvestigation procedure and division of the whole criminal litigationprocedure into five stages ---- filing cases, investigation,prosecution, justice, execution may be called a well-marked special featureof our country's criminal procedure law compared with many western nations.However, is there necessity and rationality of setting the procedure offiling cases as an independent procedure before investigation procedure?What are the existing values of the procedure of filing criminal cases asa starting procedure of criminal litigation? We can not help askingquestions above. Though a lot of scholars have made research and discussionsabout the procedure of filing cases, they mostly do those around trivialthings or rationality of the terms of filing cases and few probes intoexisting values of the procedure of filing cases. Inspired by viewpointsbrought forward by few talkers recently this dissertation starts withanalyzing existing values that the procedure of filing cases should haveand makes an all-sided rational consideration on the procedure, then onthe foundation of a thorough discussion brings forward a reform scheme ofthe procedure. There are five sections in this dissertation and the formal body isabout 33,000 words. Section one: analysis of the values that the procedure of filing casesshould have, which is the existing basis of the starting procedure of ourcountry's criminal litigation――the procedure of filing cases. The prior value of the procedure of filing cases is striking crimes,namely on one hand the procedure should input crimes that have happenedinto scopes of criminal investigation in order to reduce crimes which havenot be detected, on the other hand the procedure should react promptly andin time to crimes so as to collect criminal evidences conveniently todissolve the difficulty of testifying crimes. The second value of theprocedure of filing cases is preventing from starting criminal prosecutionwith no warrant and with random in order to safeguard human rights, thatis to say on one hand the procedure has shielding function, and on the otherhand it has filtrating function. Certainly, because of specialty of sucha litigation stage as the procedure of filing cases, the procedure shouldput stress on its value of striking crimes, for its value of safeguardinghuman rights is limited. Section two: substantial analysis of problems of the procedure offiling cases. Firstly, the analysis of formation cause of the procedure. Secondly, the analysis of problems of the procedure from four aspectsbelow: one is that provisions of law have antilogy and do not harmonizewith each other, two is that there are important mistaken cognitions intheory field, three is that the procedure has problems of dissimilationand emptiness in its judicial operation, four is that "activeinvestigation"――supervision investigation and entrapment investigationcounteract with the procedure of filing cases. Section three: on the basis of analysis of two sections above and fromthe actual state analyzes and reflects circumstances of realization ofvalues that the procedure of filing cases should has. The first, exhibition of low efficiency of striking crimes of theprocedure of filing cases: on one hand the function of inputting crimesof the procedure is not good, on the other hand there are important defectsin the aspect that the procedure should react promptly and in time to crimes. The second, exhibition of incapability of controlling power in theaspect of safeguarding human rights of the procedure of filing cases: onone hand legislative intention of secluding citizens' normal social lifefrom criminal litigation aiming at the restriction of investigation power'sexpansion by virtue of high terms of filing cases goes by the board easily,on the other hand the procedure of filing cases is far from performing therough...