On Establishing Judicial Review System To Mandatory Investigation Measure In China

Criminal procedure is a mass of area, which strongly shows the conflict and contradiction between individual right and state right. However, criminal procedure meanwhile is endowed with the mission to solve out of ambilateral benefit. Especially during the investigation process, when state exert the function to against crime, it usually restricts and bereaves individual's proprietary right, right of personal liberties , and right of privacy. To avoid the violation to individual right, most western countries have established the judicial review system in their investigation, which means any investigation department has no right to exert any personal mandatory measure, such as arrest and detain, or any other mandatory investigation measure, without the censorship of a neutral judicial department.The investigation process, particularly the exertion of mandatory investigation measure, is lack of review and surveillance by a neutral judicial department, therefore, the investigation in China has totally become a super-offizialmaxime administrative enforcement, which is cryptical, unilateral, and unpublicised. During the whole criminal procedure, extorting a confession by torture, illegal investigation, overtime detain, and abusing mandatory measure occur so frequently that criminal investigation has become the process, which usually involves the procedural violation. And it also has been one of the sticking point of Chinese criminal justice system and should be solved out when amend the Criminal Procedure Law. Based on the protection of human right in the basic idea of modern criminal justice and theserious fact we faced, it is time to establish the judicial review system during the investigation process in Chinese criminal justice system.First of all. the article gives the power of investigation an estimation, namely only when a neutral judicial department is involved in the investigation process and the neutral judicial officer plays the third party as a judge, the investigation process then has the attribute of justice. The power of investigation need accept the judicial review, and the investigation activity could be the basic condition of judicial activity in some cases. But it is not enough to claim that the power of investigation is justice by itself. The power of investigation indeed is a kind of administrative power. Therefore, as a kind of administrative power, the power of investigation must be restricted by external supervision, such as jurisdiction. Further more, because of the aggression of the mandatory investigation measure, it should be restricted by neutral judicial department as well, to avoid any violation to individual's body, property, and privacy.Secondly, the article concentrates on analyzing the origin of judicial review system and comparing the different judicial review systems in different western modern democracy counties. Then, based on these theoretical researches, the article reviews the disadvantage of the lack of restriction and supervision by jurisdiction and gives a briefly analyse about its historical reason in China.Finally, the article gives a primary idea to establish the judicial review system of mandatory investigation measure in China, according to the experience of the successful judicial review system in Western modern countries and the practice of Chinese legal system.Judicial review system should be divided into three phases: First one is to exert the writ system to mandatory investigation measure. Second one is whoever are restricted or deprived the right of freedom, should obtain the hearing right in time. And the third one is to establish the mechanism of remedy of right after mandatory investigation measure.The subject of the judicial review department should be the arresting sanction department in prosecution department. It means to unit the investigation andprosecution in prosecution department and criminal investigation in police office, abolish its function of legal supervision, make it a specific department, which takes on the responsibility to investigation and prosecute. And then the arresting sanction department become a new neutral judicial department without any relationship to case itself. Meanwhile the judicial review officer will review the application of mandatory investigation measure, regularly review and decide if the permission should remain or not, decide the application of varying mandatory investigation measure, and accept the appeal during the investigation and prosecution process applied by defend.