Constructing The Judicial Review System Coexisting With The Legal Supervision System

Western countries insisted that judicial review of pre-trial proceedings should beexercised by a neutral judiciaryand emphasized that the court had the ultimate andauthoritative jurisdiction of litigation procedure in the trial proceedings.The principleof judicial review has become an international standard for all countries to follow. Fora long time, we are lack of notion of judicial review;the administrative trends ofpre-trial proceedings is more outstanding;all but arrest of the pre-trial coercivemeasures of investigation is reviewed and approved by procuratorial organs, and theother compulsory measures to people and objects usually decided by the investigatorsthemselves.As for the cases of crime by taking advantage of dutydirectly investigatedby procuratorial organs,it remains the problem that the procuratorial organs mayinvestigate and arrest all by themselves; court may make its own decision to arrestwithout any party’s submission; investigative behavior is defined as a judicial actwhich can not be sued; it is lack of judicial remedies for coercive measures ofinvestigation. Investigating authority’s power of making decisions and implementationto the coercive measures is too strong, while the supervision of the procuratorialorgans is too weak. Because of the defects in the above mentioned systems, it leads tothat the illegal practice and abuse occurred from time to time. It is of greatsignificance to solve the administrative trends of pre-trial proceedings which needsthe transformation of litigation and the core is to build the judicial review system withChinese characteristics.Legal supervision system is the core element composing the judicial system withChinese characteristics.The procuratorial organsare legal supervision organs ruled bythe Constitution. Legal supervision powers have evolved from general supervisionpowers to specific supervision powers since the founding of the PRC.No matter howmany queries towards the legal supervision system have been raised from variouscircles,the procuratorial organs’ position as the legal supervision organ has not beenwavered.Legal supervision powers continue to be strengthened; supervisionprocedures continue to be improved; supervision measurescontinue to be enriched.Legal supervision system plays an irreplaceable role throughout all stages of theproceedings, and it influences all aspects of the decision, execution and supervision ofcoercive measures of investigation. Legal supervision system has the functions toprotect human rights, separate and balance powers, and maintain the rule of law, whilethe judicial review system has the functions to protect human rights, separate andbalance powers, andkeep due process.Although they are two different subjects,different natures, different contents, and different specific ways of protecting ofhuman rights, separatingand balancing powers, their value targets and positionrequirements are the same. It is necessary and feasible to analyzethe coexistence ofthe legal supervision system and the judicial review system from multiple angles. Establishingthe judicial review system coexistingwith the legal supervision systems,we should follow the principles of basing on our national conditions, promoting it stepby step, fairness and efficiency. Meantime, we need to grasp the essence of judicialreview, and take effective and concrete measures combined with China’s nationalconditions and traditions to improve the legal supervision system while building thejudicial review system.The specific measures including the cancellation of the30daysextending in the Criminal Procedure Code, remaining the procuratorial organs’ reviewand arrest powers in ordinary cases, first establishing the judicial review system in thecrimes by taking advantage of duty, abolishing the People’s Courts’ power to arrest,and other enforcement measures will be decided by the review or investigationdivisions of court by themselves.Of course, we should ensure if the party isdissatisfied with the coercive measures of investigation, theycould initiate legalproceedings and obtain remedies. Based on this, we can buinld a judicial reviewsystem with Chinese characteristics, and build a fair, efficient and authoritativejudicial system with Chinese characteristics.