On Judicial Review Of The Criminal Investigation

In terms of the criminal proceedings of our country, criminal investigation is implemented by the state's compulsory power, it occupies the central position. The main task of criminal investigation is to collect crime evidence and to identify the facts, in this stage, the interest between crime control and protection of human rights will be affected easily. Therefore, many countries establish the system of judicial review, to limit unlawful investigate and to protect the legitimate rights of citizens. Today, the theory and practice of judicial review has become an international recognized system, the establishment is urgent. By introducing the legal basis of judicial review of investigate, comparing to foreign practices, analyzing of the reasons of lacking it, the author initiatively conceives to build the system of judicial review of the investigation which adapts to the condition of China.The paper is composed of four chapters. The first chapter discusses the legal basis of the judicial review of investigate, overviews the concept of judicial review and the power sources and the process of formation and establishment, analyzes the legitimacy, it includes the theory of separation of powers, the protection of human rights and the theory of procedural justice, then presents the necessary of the establishment of judicial review of criminal investigation. The second chapter is the inspection of two legal systems:The Common Law, is represented by the United Kingdom and the United States; The Civil Law, is represented by Germany, France and Japan, then obtains the inspirations for China. The third chapter introduces the current situation of judicial review of investigation in our country and analyzes the reasons for the inadequacy. There are three reasons:First, the absence of the spirit against for judicial review especially in the criminal trials, the position of defense is weak; Second, the lack of legal authority and credibility, the judge skills and professional quality need to be improved, the justices need to be approved and recognized; Third, the affect of "entity is prior to program" concept. The fourth chapter is the part of novelty, the establishment of judicial review of investigation. The systems are designed by judicial review subjects, scopes, methods and the judicial remedy of illegal investigates, striving to the operability in practice. Echoing to the system design, the relative requisite measures are introduce to be reformed, to adjust the relationship between investigation and prosecution, to enhance lawyers to be involved in the investigation, and to improve the Exclusionary Rules of Illegal Evidence.