Research On The System Of The Preliminary Examination On Duty Crime

The preliminary investigation is a special system that is established gradually in the process of People's Procuratorate investigating duty crimes. It's undoubted that a variety of problems rose with the application of this system. Studying the preliminary investigation system is essential and significant to insure the sound development of the duty crime investigating work and promote further perfection of the Criminal Proceedings legislation.The duty crime preliminary investigation system, originated at China's unique historical background, is an element in the criminal proceedings that can not be ignored. China's Criminal Procedural Law does not provide for the preliminary investigation system. The words, "Preliminary Investigation", first appeared in the document of the second national work conference on the prosecution in January 1985. The Preliminary Investigation System was finally established in the"People's Procuratorate Criminal Procedure Rules"issued by the Supreme People's Procuratorate in 1999. The duty crime preliminary investigation refers to a litigation activity that identitfies the conditions on file by investigating the clues within the jurisdiction of the People's Procuratorate. Abroad, the survey conducted by the investigating authorities after criminal cases is called "Preliminary Investigation", and is regulated as part of the investigating activities. In China, the preliminary investigating activity is defined as a filing judging act to identify"whether the facts forms crime and whether the criminal responsibility need to be imposed, as well as a criminal judicial act.The importance of duty crime preliminary investigation system forms a sharp contrast to its embarrassment in practice. In theory, there are three opinions to the duty crime preliminary investigation system- opposing theory, supporting theory and reform theory. In legislation, the first Investigation System lacks the basic evidence of the law. Besides that, the rules of the prosecutorial organizations did not obey the law, furthermore, the Rules of the Criminal Lawsuit about People's Prosecutorial Organizations has logic contradictions. In practice, there are many defects, such as the lack of the uniform standard, the necessity of perfecting the management, and so on.Compared with the severity of duty crime, the preliminary system has been significantly lagging behind. Since the preliminary investigation system is the necessary procedure in investigating duty crime, the premise and basis for preparing filing and the preparation and preclude to start formal investigation, the rational thinking of it is necessary. Preliminary investigation has many advantages, such as preventing power abuse, enhancing the ability to investigate duty crime, starting proceedings function, improving the detection system of duty crime and promoting social harmony and stability. The judicial improvement of Preliminary Investigation of duty crimes is indeed necessary and urgent.After all those we have done, we can actually find the methods to reform the preliminary investigation system. Reform should follow "the principle of strict accordance with the law," "the principle of timely and effective," "the principle of proportionality," "the principle of the protection of the rights," "the principle of supervision." As to the reform, it should be performed in two parts: legislation and practice. As for legislation, we should cancel the dependence of setting a case, and put up a flexible procedure-starting system. In practice, first we should improve the first investigation procedure. Secondly, we should set up the concept of first investigation system, and try to improve the mechanism of management. Thirdly, enhance the construction of the system, and carrying out the set of system of investigation and keeping the secret. Finally, we should strengthen the supervisory mechanism of first investigation.