The Construction Of Adversarial Investigation Procedure

Investigation procedure has an important role in the entire criminal investigation, some scholars point out:"The whole Criminal Procedure as a building, and investigation procedures are just like the foundation of the building." In a sense, it is the investigation procedure but not the trial program that determines the fate of the criminal suspects and defendants in China. So, it is true that the investigation procedure has an important role in the entire criminal investigation. However, it is a long time that the investigation procedure has been unduly ignored in China's legal circles, and the theoretical system works on this is actually very rare. Therefore, many shortcomings have to be resolved in the investigation procedure in china, which needs improvement.From the perspective of the current judicial practice, Investigating agency which has so enormous power of investigation is lack of the necessary, reasonable, effective Constraints. It also results the status of the prosecution and the defense unbalanced:the rights of the defense have too many restrictions and low defense. The rights of the criminal suspects can not be effectively guaranteed and so on. The feature of adversarial investigation procedure is the antagonism of procedure, which is representatives of the United Kingdom and the United States. It not only strengthens the suspects'status and capacity of the action lawsuit but also emphasizes both the detective agencies'and suspects'status of equality and Antagonism. The accused have Corresponding rights with the prosecution, they also implement the defence force that ensure the accused exercise of rights effectively, then introduce neutral third party to establish the supervisory and disciplinary mechanisms. By means of comparative analysis, we can find that we should perform an adversarial transformation of Investigative Procedure to solve the problem of Investigative Procedure enhance the civilization of Investigative Procedure, by the theory of adversarial Investigative Procedure, then on the basis of researching and analyzing deeply the problems of China's present Investigative Procedure by the requisition of "adversarial". By the way of this research's ideas, the author carries out the conduct research and comparative analysis, then the author finishes this paper. The logical structure is as follows:Chapter One, the interpretation of the theory to adversarial investigation procedure, which includes the definition of content to Investigative Procedure, the value of Investigative Procedure, the relationship between Investigative Procedure and the Detective Model, the concept and characteristics of adversarial investigation procedure, the theory basis of adversarial investigation procedure, and so on.Chapter Two, the problems and the reasons for them of China's present Investigative Procedure. This chapter firstly figures out the problems of Investigative Procedure, including this four aspects:the lack of effective supervision due to the excessive concentration of power investigation, the non-protection of the human rights of criminal suspects, imbalance in the status of both parties, the lawyers'limits of the scope of participation and the role in the investigation stage. Then the paper gives an analysis of the problems to make sure the adversarial transformation of China's investigation procedure more targeted.Chapter Three, the principles should followed of China's adversarial investigation procedure. This chapter discusses the principles should followed of China's adversarial investigation procedure, in order to provide guidance to construction of specific procedures. It includes the dynamic balance principles of effective investigation and program control, the principles of care proceedings, the principles of the step forward to unified planning.Chapter Four, several ideas of constructing adversarial China's investigation procedure. This chapter is the key components of this paper. It figures out several ideas of constructing adversarial China's investigation procedure, including giving the suspects the implied right to silence, establishing a system of the investigation and evidence collection to prosecution and the defense-way, establishing applicable standards to coercive measures, establishing a system of investigative judge.Chapter Five, the establishment and improvement of related supporting system of adversarial investigation procedure. It includes the improvement of the mechanism illegal sanctions, the improvement of the supporting protection mechanisms to the lawyers'right to practice, establishing a system of legal aid in the investigation stage, and so on.