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Study On The Detection And Supervision System Of Chinese Procuratorate Organs

Posted on:2008-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiuFull Text:PDF
GTID:2166360215953035Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The right of detection is the right, which is executed by the investigating and prosecuting apparatus on behalf of the country and is aimed at the power to prosecute of the individual suspect. In China the right of detection is mainly executed by he public security organs, and the public security organs have extensive civil authority in the process of execution. While the accordingly detective control system is imperfect. The control of the right of detection is not enough and the phenomena of the violation of this right exist universally. As the supervisal organs of laws, the investigating and prosecuting apparatus plays an active role in the present detective and supervisal activities and they are the major means for the control of the right of detection in China. But because of this system's own defects and different opinions during practices, the actual detective and supervisal effect of the investigating apparatus is unsatisfactory. Phenomena as confession by torture, extended custody and disguised custody extensively exist and violate the citizen's right. With these facts, people from the theoretical world and the world of actual practice offer their assumptions and suggestions on the control of the violation of the right of detection from the respects of the systematic construction, special actual practices and so on. But their discussion is mainly based on the introduction of foreign experiences and is aimed at the control of right with other rights via the judicial control of the right of detection. And the study on how to enforce the detective supervision of the investigating and prosecuting in existing legal frame is limited. Through the long-term work in the investigating and prosecuting apparatus, the author of this paper has relatively deep understanding about the problems and difficulties in the process of the investigating and prosecuting apparatus'execution of the right of detective control. The author also ponders over the reasons of these problems and intends to make an elementary discussion of the detective control system in the investigating and prosecuting apparatus.This paper is divided into three chapters. Chapter one is about the basic theories on detective control. Chapter two is the comparative study of the detective control systems. Chapter three is about the problems and perfection of the existing Chinese detective control system. Chapter three contains six parts. Explanation about the detective control system is made from different points of vie, and a relatively comprehensive presentation is made on the present situation, problems and the perfection of systems.Chapter one explains some basic theories, such as the concept, the main body, object, scope, and aims of detective control. As to the concept of detective control, the author believes that detective control is mainly to supervise the legality of detective activities and is the restriction and control of the right of detection. The investigating and prosecuting apparatus'activities of detection and supervision is active rather than passive. This supervision is throughout the whole process of detective activities. the main body of detective control, we can sec that the main body of detective control is many-faceted rather than unitary according to the existing legal stipulations. But from the specialty of detective control, we know that only people's procurator ate is the Chine se supervised organ of laws according to the stipulation of Chinese constitution and Criminal law, and people's procuratorate has the right to supervise the detective activities of the public security organs. Therefore only the investigating and prosecuting apparatus, which is the specialized supervial organ of laws for criminal lawsuit, is the main body of detective control. The aims for detective control arc to ensure the legality and rationality of the right of detection rather than to hinder the successful advancement of detective activities. For this reason, the author believes that the aims for detective control are: one is to ensure the legality of detective activities, so as to protect the legal rights of those concerned; the other is to ensure the validity of detecting activities so as to find and disclose crimes accurately and promptly. The two aims compose the value pursuit of and order of detective control system,and its nucleus is to control the right with other rights.Chapter two carries out a study on the different detective control systems in countries from the British and American Legal System Contineta1 Legal System. This offers theoretical reference for the further perfection of Chinese detective control system. For the countries from those and two legal systems,the author makes a comparative study on the detective control systems from the two selected representative countries, Great Britain and America. Countries from British and American legal system practice adversary system in criminal lawsuit and emphasize the equality of the Charges and countercharges, the justice of procedure, the protection of the litigant's right, the restriction of the detective organ's right of detection. And the detective control is strict and the flexibility for the detective organ's execution of the right of detection is limited. Ail these are illuminating to the conquest of the existing over-excessive right of the detective organs. As to the countries from the Continental Legal System, the author selects the detective control systems of France, Germany and Japan and makes an elementary study to them. The ways of operation of these three countries, detective control systems offer us a basic understanding for how those countries in the Continental Legal System carry out the control of the right of detection through judicial prosecution in the model of the doctrine of function and power. The author makes a comparative study on the detective control systems in the two legal systems and analyzes the different ways of supervision and restriction base on the values and orientation of lawsuit, judicial systems, the construction for criminal lawsuit, judicial systems, construction for criminal lawsuit. This offers us a more comprehensive understanding of the detective control system under different lawsuit constructions. Based on these, the author compares the detective control systems in China and western countries and makes us have a recapitulative understanding of the reasons for the existing problems in Chinese detective control system.Chapter three makes a comprehensive analysis of the existing problems in Chinese detective control system and presents the author's personal suggestions for the perfection of this system. For the existing problems, the framework for this system has been established, but it is not in detail and a lot of problems unavoidably exist in judicial practices. Firstly, the present way of supervision of the investigating and prosecuting apparatus is by way of written form investigation, in which the materials in the case is delivered by the detective organs. While actually the law-violating situation in detective activities cannot be comprehensively and accurately reflected, so that inefficiency of supervision results in. Secondly, the investigating and prosecuting apparatus'means for supervision is focused on the presentation of corrective ideas, and only registered supervision can arouse lawsuit procedure. This is a flexible means of supervision and lacks strong protective mechanism. It cannot bring about procedural consequence, so its function seems relatively weak. Thirdly, as the main body of detective control, the investigating and prosecuting apparatus undertakes the task of investigating and accusing crimes in criminal lawsuits with the detecting organs. And the two share the exertion of the power to prosecute, so that the procurators cannot get rid of the psychological burden of investigating and accusing crimes. And they unconsciously outpour the psychological tendency to investigate crimes together. Thus cooperation is emphasized and restriction is despised. Problems in the stipulation of laws are: firstly, the Criminal Law endows the investigating and prosecuting apparatus to supervise the activities of the detective activities of the detective organs, at the same time, it blenches the supervision of cases under investigation by the prosecutorial organ itself. So, the right of detective supervision is not comprehensive and complete. Secondly, for the scope of detective control, there in no definite bring into for the supervision of whether the detective activity is appropriate in the Criminal Law. Moreover, some compulsive detective activities as detention, undertake recognizance upon bail, supervision of residence etc. are excluded from the objective scope of supervision. Thirdly, the way of detective control is relatively lagging. Although the investigating and prosecuting apparatus has the right of ratifying the arrest, for the public security organs'compressive detective actions, such as rummage, detention, and distrainment, only the lagging supervision af1cr the event can becardc4through. Fourthly, for the supporting mechanism, the investigating and prosecuting apparatus is short of the succeeding supporting mechanism for the legality supervision on the public security organs, detective activities, so that the detective control is reduced.For the above mentioned existing problems, the author presents some suggestions for the perfection of Chinese detective control system, based on the situation of China, the characteristics of judicial mechanism, the models of criminal lawsuit and the reference of some reasonable and scientific factors in the detective control systems of other countries. Firstly, the legal status of the main body for detective control must be reinforced in laws. The investigating and prosecuting apparatus, right of detective control should be enforced, so as to restrict the violation of the right of detection effectively. Secondly, the system of reporting criminal cases should be established. Specifically, the law should definitely stipulate that the concerned legal instruments either registered or not and copy of materials should be sent to the detective control department of the investigating and apparatus after the criminal register department registers the cases. Thirdly, the intervention ahead of time should be systematized and its scope should be clear. Working system accordingly should also be established. Fourthly, the leading and investigating mechanism should be established. From the legal supervisal point of view, the investigating and prosecuting apparatus should promptly intervene the detective activities for important, difficult and complicated cases to help to define correct orientation of detection, to lead the detectives to coiled and fix evidence accurately and comprehensive in the need of charging crimes. The working principle of moderate loading according to law should be established and the scope for detective leading should also be made definite and be ensured by legislation. Fifthly, special organizations or accredit d agencies should be set up within the investigating and prosecuting apparatus, for the learning of the detectives situation of the criminal investigation department and repudiation department at any moment. This makes the corrective for various illegal detective activities possible. Sixthly, the rules for the exclusion of illegal evidence should be perfected. Seventhly, the corrective mechanism and punitive measures during detective control should be perfected. The investigating and prosecuting apparatus should be endowed the right of rescission for illegal detective activities and the right of disposing for the detective, who execute their right of detection illega11y. So that to combine the control of man and the control of events. Eighthly, the supervision of compulsive detective activities should be reinforced. Except arrestment, the supervision for other compulsive measures and detective activities in relation to the citizen's personal right and property right should be reinforced. Those detective activities include rummage, sequestration, and distrainment and so on. Ninthly, the supervised system for tempting detection should be established. The procedure for examination and approval for tempting detection should be strict. The project for detection should be sent to the investigating and prosecuting apparatus put on record. The detective measure an"the temptation for the intention of committing crimes"should be prohibited. The detective means as"the temptation for the intention of committing crimes"should be prohibit"the provision for chances"should be strictly controlled at the same time. Tenthly, the supervision for the cases under investigation by the prosecutorial organ itself ought to be enforced. The inner restriction should be emphasized and the judge should supervise those cases. When the investigating and prosecuting apparatus executes the compulsive measures an arrestment, restraint and rummage, concerned materials should be sent to people's court at the same level and the court should have the suggestive right of rescission.
Keywords/Search Tags:Procuratorate
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