On The Voluntary-Company

Voluntary-Company refers to an action which in order to investigate some truth related to illegal behavior or criminal ,in certain conditions the policemen request the corresponding- party voluntary consent to follow them to designated place. The request and motion of the policemen could not reach to coercive extent and the corresponding party may consent or reject this request without inflicted disadvantageous result.Voluntary-Company is a kind of non-coercive measure for attendance, and it has relatively been developed in world and has been validated in legislation by Japan and Korea. This measure has a flexible and simple mechanism and lower occupational risk in application. Precisely because rational choice, it has widely been applied by police in pursuit of maximizing the efficiency of law enforcement, without exception in China. Though as non-coercive measure, Voluntary-Company has a certain compulsory effect and intervention in civil liberty and right which as the great harm will be brought if it has been abused. Therefore, to exert it's benefit and avoid the evil, the legislation must be constituted to regulate operation mechanism of Voluntary-Company and making the police applies it with enough reason on legal basis and the civil liberty and right obtain fully protection. In China, there is no legislation about Voluntary-Company,Oral-Summons is just a parallelism form in China's legal practice. It is necessary to regulate Oral-Summons by legislation, for many problems have emerged and will come into being because legislative nothingness about Voluntary-Company in China.Comparative analysis and statutory analysis method has been applied in this paper to do a more profound study on Voluntary-Company. The article is divided into three parts: the summary about Voluntary-Company, comparative study on Voluntary-Company and how to constitute Voluntary-Company in China.The first chapter is for the fundamental theoretical issue of Voluntary-Company. After more accurate definition has been made through the analysis on definition and legal relations (subject,object,,content) of Voluntary-Company in this part, the article clarifies that there are difference between Voluntary-Company and compulsive attendance in such six aspects: rational foundation, application purpose, application object, implementation modality, application procedure, the extent of interfering civil liberty, and states that the non-coercive standard of Voluntary-Company should be judged in three aspects such as: whether the policemen's action has reach compulsive extent, whether the corresponding- party's company proceed from its own free will, as well as whether the company has resulted compulsive attendance. And the merit of Voluntary-Company is such a measure is beneficial to improve efficiency of law enforcement and to reduce the extent of interfering with civil liberty. Voluntary-company has been established in legislation in Japan and South Korea. And there are some similar legal system of Voluntary-Company in legislation or by prejudication in common law while in civil law countries such as Germany, France and Taiwan region, there is only legislations of coercive company.In chapter II, the article has analyzed the legislative actuality and problem about Voluntary-Company and stated the necessary to constitute Voluntary-Company in China. The article firstly reveals the actuality of legislative gap about Voluntary-Company in China and secondly of the problems—making against efficiency improvement of law enforcement and aggrieving human rights—resulting from this extra-territorial actuality. So lastly it is necessary to built Voluntary-Company by legislation in China. Only depend on definitude legislative authorization, can the efficiency be improved, and can the abuse of police's power be regulated when police applying Voluntary-Company.Chapter III is the argument of how to build our system of Voluntary-Company. The police applies Voluntary-Company only when he"rationally"believe that the corresponding party has been related to some illegal behavior or criminal or knows about it. The due reason for Voluntary-Company includes: there is relatively disadvantageous situation to corresponding party or may beget traffic jam if verify on the spot, it is not be able to or very difficult to verify on the spot. Voluntary-Company's procedure includes: apprizing, consent, the location of company, as well as the rules about police's verification after company without delay. Finally, this paper proposes legislative proposals, which states that we should definitely legislate in Police-Act, to constitute Voluntary-Company in China.