A Research On The Issues Concerning Procuratorial Organ's Direction On Investigation

In criminal litigation, how to give play to procuratorial organ's functions of accusation and legal supervision, from the angle of procuratorial function, to carry out necessary direction on the collection and fixation of evidence in investigation stage so as to guarantee case quality and prevent the abuse of investigation power; from the angle of legal supervision, to carry out supervision on the investigations of investigating organ so as to effectively ensure the just title and freedom of citizen and achieve the goal of correctly accusing crime and assuring human rights, has been always the issue concerned by academic circles and judicial practitioners. During the long time judicial practice, procuratorial organ more and more considers that it is necessary to establish reasonable system of procuratorial work directing investigation. As a new measure, which is produced in judicial practice and carried out by procuratorial organ to innovate mechanism and improve procuratorial reform, it requires corresponding theoretical direction and support, while all-around discussion and research on theoretical and practical aspects for the system of procuratorial work directing investigation is actually rare at home, which restrict the further development of the function of the system. Starting from the theoretical basis of the system of procuratorial work directing investigation, in the paper, the author introduces the relative systems of civil law system and common law system, discusses the feasibility and necessity for carrying out the system of procuratorial work directing investigation in this country and the approach of procuratorial work directing investigation, which is conducted to promote the further research and perfection of the system. Except for introduction and conclusion, the paper is divided into four Chapters.Chapter one, the general theory of procuratorial work directing investigation. The chapter is divided into two arrangements of ideas:Firstly, the conception of procuratorial work directing investigation. Enumerate the definitions of procuratorial work directing investigation made by different scholars, from which, we can see that procuratorial work directing investigation is comprehended by scholars from different angles. Through enumerating and analyzing, the author obtains that: procuratorial work directing investigation refers to a kind of working mechanism that in order to guarantee the correct implementation of constitutional law and law, protect the rights and interests of persons involved and increase the quality of criminal case, propose opinions and suggestions for directing investigating organ to collect, take, fix evidences as well as investigate and take evidences, and make synchronous legal supervision on investigations.Secondly, the theoretical basis of procuratorial work directing investigation. System criterion should be formed to carry out the work of procuratorial work directing investigation. For the establishment of system criterion, first of all, it should have theory to support, different opinions of academic circles, such as theory of accusation function, theory of supervision and comprehensive theory, are introduced, evaluated and analyzed by the author. The author agrees with comprehensive theory, and considers that comprehensive theory makes up for the theoretical deficiencies of theory of accusation function and theory of supervision, through carrying out procuratorial work directing investigation, procuratorial organ can really exercise its supervision function given by law, the abuse of investigation power can be prevented and the legitimate interest of participant in proceedings can be protected; at the same time, through procuratorial work directing investigation, procuratorial organ and investigating organ can give play to its respective advantages and form attacking resultant so as to improve the quality and efficiency of criminal litigation.Chapter two, overseas investigation of relevant systems. The chapter is divided into two arrangements of ideas: research on the relevant institutional models abroad with the aim to analyzing the effectiveness of its operating mechanism so as to provide approach and method for recollecting the procuratorial work directing investigation in this country. Civil law countries and common law countries are greatly different based upon the differences of history culture and system background. Herein, the author mainly inspects the procuratorate-police systems of France, Germany, Italy and Japan which are in civil law system as well as Britain and America which are in common law system, and makes further analysis and comment, and hopes to get some enlightenment for building the system of procuratorial work directing investigation in this country from it.Chapter three, the current situation and problems of procuratorial work directing investigation. The chapter is divided into four arrangements of ideas:Firstly, propose direction on investigation. This part mainly introduces the evolutionary process of the working mechanism of procuratorial work directing investigation made by Supreme People's Procuratorate. From which, we can see that the importance and exploring course of direction on investigation. Secondly, the practice of direction on investigation. Summarize the modes of procuratorial work directing investigation carried out by the procuratorial organ from place to place, which mainly include the following modes: 1. Set up agency; 2. Convene joint conference; 3. Individual cases direct investigation; 4. Intervene direction on investigation in advance; 5. Supplement investigation outline; 6. Require investigating organ to provide materials. Through summarizing, it can be seen that at present there is no unified criterion for the system of direction on investigation, which is a problem desiderates to be solved.Thirdly, the necessity of procuratorial work directing investigation. The author discusses the necessity of procuratorial work directing investigation, and considers that procuratorial work directing investigation is the requirement of procuratorial organ to fulfill the function of legal supervision, the requirement of procuratorial organ to realize the function of accusation and the requirement to assure human rights.Fourthly, the feasibility of procuratorial work directing investigation. Since it is necessary to establish the working mechanism of procuratorial work directing investigation, then whether it is feasible or not in this country, it is discussed by the author from the angles of legality and rationality, and reaching a conclusion that procuratorial work directing investigation is feasible.Chapter four, the construction of the system of procuratorial work directing investigation. The chapter is divided into three arrangements of ideas:Firstly, the subject and authority of procuratorial work directing investigation. Who direct the procuratorial work directing investigation is the principal problem. In practice, some procuratorial organs set up agency and some appoint full-time staff.The author considers that the subject of procuratorial work directing investigation should be undertaken by the investigating and supervising department of procuratorial organ, the host of public prosecution department and main-suit procurator. After solving the directing subject, then come to what authorities should be owned by directing subjects? Seen from the existing legal rules, the subjects who direct investigation should enjoy the following five authorities: the authority to participate in investigations; the authority of investigating suggestion; the authority to provide evidence and the authority to accept or reject evidence; the authority to pick up materials in the case file to read; the authority to correct illegality. The author considers that based on the authorities stipulated by the current legal rules, in order to give full play to the function of the system of procuratorial work directing investigation, some authorities of procuratorial organ can be expanded: 1. The authority to investigate by itself; 2. The authority to investigate enforcement measures;3. The authority to discipline and give suggestions; 4. The authority to investigate criminal case.Secondly, the scope of procuratorial work directing investigation. The author considers that procuratorial work directing investigation should not have the restriction in its scope, procuratorial organ can decide whether intervene in investigation or not by itself according to circumstances of the case, which is decided by procuratorial organ's function of investigation and supervision, procuratorial organ has the authority to intervene once there are investigating acts, and restriction should not be made in the scope of case.Thirdly, the specific approach of procuratorial work directing investigation. The approach of procuratorial work directing investigation has been discussed by many scholars and experts, after the summarizing, the author considers that procuratorial work directing investigation has the following approaches: 1. Perfection of legislation;2. Establish registering and filing system; 3. Establish case withdrawal and review system; 4. Make clear the internal division of labor of direction on investigation; 5. Strengthen the effectiveness of direction on investigation; 6. Accelerate the reform of the judicial system; 7. On police-prosecution mode, carry out the system of one leadership and one supervision; 8. Exchanging and training system; 9. The system of viewing and emulating in court.Fourthly, the procedure of procuratorial work directing investigation. Further elaborate on the starting procedure and vectoring procedure of procuratorial work directing investigation, which makes procuratorial work directing investigation have operability.