On The Restrictive Mechanism Of Compulsory Investigation

Carrying on essential restrictive to the compulsory investigation is the universal experience of the country under the rule of law, In order to prevent the improper exercise of compulsory investigation,the country under the rule of law has designed the one whole set approaching tedious procedure rule, protects the compulsory investigation authority not to exercise as for the harm relative person's lawful right. In our system of criminal proceedings, a chronic lack of awareness of a problem of balance of powers causes the movement and the restrictive of the compulsory investigation authority faces with many difficult positions. Therefore, base on the national condition, learns the advanced experience of the country under the rule of law, introduces and discusses the restrictive mechanism of compulsory investigation, it will have important theoretical and practical significance. Besides the introduction and conclusion, this body consists of three parts, a total of about thirty-three thousand words.The first part is the basic theory of compulsory investigation. This part first introduces the principle of statutory, the proportion principle and the judicial review principle that the compulsory investigation should follow. Second,the importance and risk of the compulsory investigation has carried on the discussion. In the course of the investigation, adopts the compulsion detection to be possible to draw support from national the compelling force enhance investigation efficiency, reduce the kinds of obstacles in the investigation process, and verifies the case and the collection evidence rapidly. To sum up, its importance is mainly reflected in: the first, to ensure the smooth progress of investigation procedure, verifies the case as soon as possible, collection and preservation of evidence timely. The second, ferrets out the suspect as soon as possible, guarantees the appeal and the trial smooth advance. The third protect innocent from criminal liability. The compulsory investigation 's risk is:the first, the right is insufficient to restrict the power. The second, the compulsory investigation exercises the degree-of-freedom to be big. The third, the improper compulsory investigation will possibly attack the judicial authority. Finally, constraints on the need for compulsory investigation are discussed.The second part is reconsideration to our country's restrictive mechanism of compulsory investigation. The first carries on summary and the induction to our country's present restrictive mechanism of compulsory investigation. This article point out our country's present restrictive mechanism by enumerates way include investigating agency's internal control,attorney supervision,exclude evidence of illegal words,protect the rights of criminal suspects and their lawyers. And, in terms of illegal evidence exclusion, the paper discusses《About judge for review of death penalty cases on the Provisions on Several Issues of evidence》and《About handles the criminal case to exclude illegal evidence certain questions》positive sense about controlling the compulsory investigation. Second, carries on the elaboration to our country's present compulsory investigation's restrictive. In this part, this paper changes the simple display country under the rule of law legislation pattern the procedure, through compare with legislation and judicial practice of countries under the rule of law,points out our country's present restrictive way exists some defects, such as attorney supervision has not able to play the role fully,lacks of judicial review system,the rights of the criminal suspects and their lawyers can not be protect,and the lack of relief procedure.The third part is the conception which consummates our country's restrictive mechanism of compulsory investigation, and this is the writing key of the paper. This part makes a initial conception to the restrictive mechanism, the restrictive mechanism includes that concepts a complete legislation of compulsory investigation, takes the attorney supervision as the leadership, establishes judicial review system gradually, endows the criminal suspects with the right of silence in investigation stage, protects the lawyer's participation right, and consummates legal aid system. In addition, in the demonstration method, this part will adopt the way, which combines the theoretical discussion and the empirical investigation. The conceptions on this basic that consummates our country's restrictive mechanism is: the first, consummates the legislation of the compulsory investigation by the principle of statutory for instruction,and makes a clear stipulation to the way of the restriction,rights protection,rights relief,legal consequences of illegal investigation and the range of issues. The second consummates the attorney supervision mechanism. We should change the two-way restriction to one-way restriction. On the other hand, we should strengthen attorney supervision to the compulsory investigation. The specific conception is transform attorney supervision system by the type of controlling, changes our country's present situation that attorney supervision could not restrict the compulsory investigation, and makes prior censorship. Finally increases the essential surveillance method, includes the right to know,participation right,the right to propose the opinion and the right to propose the punishment. In addition, we should make the legal effect of the attorney supervision clear. However, the legislation should stipulate the force of law o《fNotice of correct the illegal investigation measures》and《Attorney proposal》, and the legislation should formulate disadvantageous legal consequences. The third, establishes the judicial review system. The judicial review system in the paper is the Civil Law's legislation mode. The paper first rejects the views which against establishing the judicial review system. The way to establish the judicial review system should be progressive, because lacks the court supervises and controls the compulsory investigation, emphasizes the procuratorial organ plays an active inspection and supervision functions, and introduces the judicial review mechanism appropriate in some cases, and finally establishes the judicial review system. Finally, we also should strengthen the suspects and their lawyer's right safeguard, and realize the right restricts power.