On Judicial Review System In Criminal Investigation Period In Our Country

Investigation procedure is an important stage in criminal procedure. Itregards finding out crimes and collecting the evidences as the main tasks. Itoffers fact basis for the prosecution of the procuration organ and the trial of thecourt. It is still the key stage that realizes the human rights protection. Just asTaiwanese scholar Kang Shun Xing of our country said: " because the basicrights such as the freedom of persons, living and property rights and interestsin the investigation stage are often encroached easier, we must revise therelevant provisions in the procedure for the investigation and make theinvestigation organ and investigate persons obey them. Investigationprocedure has important meanings on the human rights in fact. "Because of thespecial nature of the investigating procedure, a lot of countries regulate theinvestigating procedure through the rigorous and strict legislation. They usethe criminal judicial review system to restrict the investigating rights. Thecurrent law has no relevant regulations in our country. It is quite loose torestrict the investigating rights. We should strengthen the research on theinvestigate procedure and construct the rational investigation procedure.Part one The theoretical foundation of Judicial Review System incriminal investigation periodOne of theoretical foundation of judicial review is the theory of rule oflaw. The ruler observes the law .The national legislation, administration,judicial authority is under the adjustment of law. And the court comes to judgewhether the application of state power accords with the regulation of the law.One of theoretical foundation of judicial is the theory of separation andbalance of powers. Separation and balance of powers are the signs of thepolitical civilization and social progress. In the modern political system,legislation, administration of justice and administrative organ are all playingimportant roles. The judicial power is set against the restriction of the right andexecutive power. One of theoretical foundation of judicial review is humanrights theory. Human rights theory requires government offer the effectiverelief for victim whose human rights are infringed, especially when thecitizens are infringed by government office, they have rights to require thecourt to be examined and make the judgment by the behaviors, and correct theillegal activities. One of theoretical foundation of judicial review is theory ofprocedural justice. The theory of the procedure justice requires the case not tosentence to the correct, justice, and accord with the regulations of substantivelaw, but also make people experience the fairness and rationality. In theinvestigation procedure, restricting the power of investigating with the judicialpower, can prevent investigating organ abusing their power.Part two Legislation and practice of some main countries and U.N.The judicial review system in Britain originated from the 17th century. Itis the mechanism that focus on the court review whether the administrativebehaviors of the administrative organs accord with the constitution and the law.It uses the narrow meaning of the judicial review. The judicial review inBritain includes examines in advance, examines afterwards and appealsre-examine. America is the first country that set up judicial review system. Themeaning of the mechanism is relatively wider, which means America federalcourts have power to declare such acts to be invalid government behaviors andthe law violate the constitution. The system of preliminary hearing in Franceoriginated in 1808. It includes elementary preliminary hearing and the secondpreliminary hearing two stages. The judicial review of Japan conclude doctrine,detain to show system and resisting. In addition, I have also introduced therelevant contents about the judicial review in the criminal judicial criterion ofthe United Nations in the article.Part three Necessity of constituting judicial review system in criminalinvestigation period in ChinaFirst of all, it is necessary to establish judicial review system ininvestigation period for improving supervision mechanism. Because thereview of police and prosecution organ are a inner supervision in fact. Theeffect of this review is not perfect. So we should introduce neutrality organ tosupervise the investigation power.Secondly, it is necessary to establish judicial review system ininvestigation period for restore due procedural structure. The investigationstructure in our country is some of inquistional. The investigation power is toocentralized. It is too weak of suspect's defending rights. we should introducereview mechanism into our investigation period and construct correct relationamong the prosecutor ,the defendant and the judge.Finally, it is necessary to establish judicial review system ininvestigation period for protecting suspect's rights. We should constructJudicial Review System. It can provide relief in time to suspects when theirrights are infringed.Part Four Constituting judicial review system in criminal investigationperiod in our country(1) Proposal for judicial review system in criminal investigation period inChina. First of all, regulate the judge of judicial review system in investigationperiod. It is court. Second, regulate the subject who have the rights to institutejudicial review. The mention subjects include investigation organ , prosecutionorgan ,suspect and his agents and relative. Third, regulate the range of judicialreview in criminal investigation period. It include the conservatory measure ofthe person and evidence. Finally, regulate investigation level of JudicialReview System. It include examines in advance, examines afterwards , appealsre-examine and complaints check-up.(2) Setting up and perfecting human rights guarantee system. We shouldgive the suspect, defendant a series of lawsuit rights, in order to ensure judicialreview to operate effectively. Improve rule against hearsay can provide a...