On The Jurisprudential Study Of Opening Investigation

The open principle, recognized as an important fundamental judicial principle internationally, should be taken in the whole process of litigation. However, it is only adopted of opening trial principal currently in China with no relevant stipulation of whether the investigation should be open or not. The investigation procedure in practical still remain in a close and secret status, which have some questions as extorting a confession by torture, extended term in custody and hard to defend.From the jurisprudential point of view, firstly, the opening investigation should be the general principal in the investigation procedure, which could make it possible for the case-related person/persons to attend, equalize both parties in strength and restrict the investigation power effectively, and contribute to establish the authority of laws. Secondly, it is a basic requirement to ensure the human rights: it makes the citizen's right of information to realize directly, provides effective means for any party, in particular the suspects to use its participating right and ensure the rights of life, freedom, security and personality be respected, also it can help the suspects to obtain the lawyer's assistance to strength the defendants. Thirdly, the litigation value requires opening investigation as its internal need. From the view of justice, it can realize not only the justice of procedure but also the justice of entity. From social order, it can maintain the social order and ensure the requirement of litigation order. From benefit, it can promote the realization of benefit value and avoid pursuing it blindly. Therefore, investigation should be opened in our country.The object of open could be classified into the open to party and his relatives and counsel and the open to the public and state authorities. However, it should be appropriate with proper limitation. Generally speaking, with the development of investigation, the scope of opening investigation indicated an increasing process from small to big, in which a portion of investigation scopes, subjects and contents has to be open whichever the case is for the purpose of ensuring the criminal litigation in human rights, i.e. the lowest standard of investigation open; the other portion may be opened based on existing condition by investigator under the guidance of related principles, i.e. the flexible stipulation of opening investigation.