Reasonable Regulation Of Unspoken Rules In Criminal Investigation

Author has been engaged in practical work of criminal investigation for a long time, and found several rules, which designed for convenience and specific needs in criminal investigation, but is universally accepted practically without formal legal recognition. As a result, statutory procedures established by the legislator could not be effectively implemented in the actual criminal investigation activities, and they are replaced instead. Author named them hidden rules in criminal investigation. Practically, legal procedures of criminal investigation are accommodated, alienated, evaded, emptied, aerial, abused, etc. Such hidden rules cause that legislators’ criminal procedure law revision are contrary to practice. Hence, it also leads to difficulty to implement in reforms issues advocated by scholars. Therefore, the study and reflection of hidden rules are of both theoretical and practical value. From the coercive measures applied and special investigations based on China’s criminal investigation, author try to draw empirical rules in description and preliminary studies, and then analyze three causes of the phenomenon of hidden rules:internal contradictions in criminal investigation procedures, the enforcement of criminal investigation procedures and rational choice of investigating institution. From the traditional method of law, procedural sanction, and legal transplants, author analyze several approaches of regulating hidden rules reasonably, and point out their rationality and weakness of approaches above, and present tort litigation, reform trends of formalizing operational hidden rules, in a gesture to explore "Chinese model" in criminal investigation in the future.