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Procedural Illegality In Investigation And Concerning Procedural Sanction

Posted on:2006-02-02Degree:MasterType:Thesis
Country:ChinaCandidate:X J WuFull Text:PDF
GTID:2166360152985009Subject:Law
Abstract/Summary:PDF Full Text Request
Investigation procedure, as the most important procedure in public prosecution, has increasingly aroused public concern. Opinions rain on all kinds of phenomena occurred in the process such as illegal torture to get a confession or extended detain, partly because nowadays people's awareness of rights are enhanced in the construction of a society ruled by law, partly because of specific characteristics of the procedure itself. For a long period, as to efficiently crack down on crimes, all countries haven't laid down many rigid provisions of investigation procedure. Without inspection and participation of all walks, investigators are rendered only too much power to violate the procedural provisions in practical operation. What's worse, the procurator and judge will also conflict the spirit of procedural law under certain condition. Violations of the investigation procedure call for an immediate solution. This article presents a comprehensive introduction of the status quo of procedural illegality in investigation and arrives at some sound strategies after an analysis of the sanction mechanism This article consists of five parts, and totals at above 40,000 words. The first part introduces reasons for choice of topic and its urgency, and then it simply explains construction of contents, so readers can have an overall picture. The second part is about nature, behavior, negative effect of procedural illegality in investigation. In compare to the substantive law, it comes to a conclusion of characteristics of illegal procedure, which are specific subjective, objective, nature and solution. Take real cases into consider, it draws out some typical forms such as offense of filing a case, extort confessions by torture, abuse of search and distrain, inquiring about and freezing people's property at will, illegal detain and arrest, illegal wiretapping, entrapment, restrict or deprival of right of assistance from lawyers. Illegal performance not only undermines construction of socialist legality, but also infringes procedural justice and human rights. At last the innocence suffers unjust and in side of the nation the limit judicial resource is wasted. All of the above can be attributed to ignorance over procedural law, unreasonable structure of investigation right, defect sanction mechanism and assess system, negative effect of traditional culture and poor performance of investigators. The third part highlights importance of sanction in illegal investigation procedure. By comparison with the substantive sanction, it put emphasis on the strong point of procedural sanction. Reviewing the provisions abroad, we can see there are four main prescriptions, which are judicial stays or dismiss of charge, the exclusionary rule of illegal evidence, invalidation of procedural action, alleviation of punishment. In addition, it also points out the limit of procedural sanction. The fourth part firstly discusses defects in procedural sanction mechanism, which deals different situations of a narrow scope in a fixed simple way and is short of the supportive system. Then it analyzes the cause of these flaws from four angles that is traditional culture, legislative system, formulation background and value of the procedure. Finally the author provides some effective measures against these flaws such as we should apply more flexible procedural sanction in different ways, expand scope of sanction and set up supportive systems. The last section is concentrated to define the range of the subject. This article just refers to the basic information of the illegal investigation procedure. While it stresses theory of procedural sanction, it seldom looks into procedural plead and appeal. I will be devoted to research this subject practically for the perfect of the theory.
Keywords/Search Tags:Investigation
PDF Full Text Request
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