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Study. Criminal Investigation Start The Program

Posted on:2008-03-23Degree:MasterType:Thesis
Country:ChinaCandidate:J X JiangFull Text:PDF
GTID:2206360242972110Subject:Law
Abstract/Summary:PDF Full Text Request
Criminal investigation starting procedure(CISP)chiefly includes the causes , the approaches and methods of CISP.The cause of CISP relys on the factual judgment.A veteran and shrewd policeman may do better than a law expert in terms of correlation between factual judgment and CISP. In case that a investigator has some valid suspicion on the happenings of criminal activities, he may start investigating procedure based on whatever fact or cause. In view of this , the approaches and methods of CISP becomes the core issue of this thesis.CISP or the initial enforcement of investigating power can be classified into two types. One is that in starting the investigating procedure, no forced measures are taken to restrict the personal freedom or his property or infringe upon the private rights of citizens. In other words, there exists no necessity to limit and subdue the proceeding of CISP. It is in nature a kind of common investigation. On the contrary, the other type is that the initial enforcement of investigating power is involved with forced measures taken to restrict the personal freedom or his property or infringe upon the private rights of citizens. Because this forced investigation will restrict or infringe upon citizens'rights, the preconditions are required to start the investigation. And this precondition of starting investigation is actually that of taking forced measures. Hence the core issue of CISP mode research is to make clear what is the necessary condition in executing the forced investigation. In other words, if the initial enforcement of the investigating power has some bearings with limiting or infringing upon the citizen's right, a proper way should be found to subdue it. The starting of investigating power should follow such principles as those of publicity, promptness, validity as well as legality. In some major developed countries, random investigation starting mode is a usual practice. And apart from that, the judicial examination will enter into the procedure of investigation. Under the influence of criminal procedure law practice of former Soviet Union, China institutionally takes the lawsuit procedure as the starting procedure of criminal proceedings. Therefore it is a mode of procedural starting investigation. Viewed from the present practice, this case-filing procedure fails to reach the proposed objective in institutional design. And what is worse, it has given rise to a number of ill-effects. Therefore, based on the practices of some western countries and the status quo in our country, this thesis holds that the case-filing procedure should be cancelled in amending the criminal procedure law and that it should shif(?)o random-pattern starting procedure and that the criminal information registering system should be established and that the judicial examination system should be introduced and that the combination of initial investigation and follow-up investigation mode should be established. But French-style pre-judging judge-dominating investigating mode should not be introduced.This thesis can be divided into five parts. The first part is a brief illustration on the nature of investigating procedure. This part begins with that the investigating power is in essene a kind of administrative power. It has such features as compelling, initiality,unilaterality in enforcing the authority as well as infringement. The ultimate objective lies in that the suspected criminal would be seized through evidence-collecting whereas the the unguilty is secured not to be intruded on and as a result the social order is well kept up. Then this part continues with the core issue of this thesis—the starting of investigating procedure. Specificly, if investigating agents suspect or find the criminal activities and starts to execute investigating power, the ways should be found to bind it in case that the initial execution of this investigating power is involved with limiting and infinging citizens' rights. To put it simple, what is the precondition in forced investigating power executionThe second part illustrates the basic principles of investigating procedure starting. They can be divided into value principle and technical principle. Value principle can be subdivided into human right protection principle, promptness principle and publicity principle. The human right protection principle focuses on that citizens' human right should be protected while the investigating agency is executing their work. Promptness principle puts emphasis on investigating efficiency . The publicity lays stress on that the investigating power should not infringe upon the privace of citizens. The technical principle chiefly contains the principle of reasonability and legal principle. The principle of reasonability includes two aspects of subjectivity and objectivity. The aspect of subjectivity is also termed as the principle of honesty and credit. The aspect of objectivity can be termed as proportion principle. The legal principle focuses on the nation's legality on crime lawsuit. It requires that the investigating agency should start investigating the criminal acts specified in law.The third part of the thesis is about a brief study on the investigating systems in some developed countries worldwide, including the Great Britain, America, Germany, _ France, Japan, Italy and ex-Soviet Union. It points out that the investigating procedure starting mode can be divided into random-type mode and procedural-type mode. At present, the majority of developed countries employ random-type investigating start mode. It offers a furthur analysis on the system and the moral values underlying the system.The fourth part illustrates the features of our "case-filing" procedure as well as its initial intention. The intention with which the law-maker designs "case-filing" is sound. The intention is that this procedure can help realize the supervising, filtrating, deflowing function with which it can both effectively protect citizens' right and allot the investigating resources. However, the status quo of our nation is not in accordance with the realiztion of the initial intention of the "case-filing" procedure designed by the the law-maker. There exist the problems as the functional alienation and the defunctioning of the "case-filing" procedure. Then the thesis makes a delibrate analysis on the reason of this trend from the layers of regulations, institutions and practices. It concludes that the invalid regulatory and institutional design is the major reason for "case-filing" functional alienation.The final part of the thesis is about the author's personal suggestion on the investigating procedure starting mode of our country.It holds the viewpoints that if our criminal procedural law is to be amended in the future, the "case-filing"procedure should be cancelled and shifte to the random-type investigating starting mode and that the crime-doing information registering system should be established simultenously so as to keep the crime-doing information statistic function in "case-filing"procedure and that the mode of the combination between the initial investigation and the follow-up investigation should be set up and that the judicial examing system should be introduced into the investigating procedure so as to check and subdue the investigating power.
Keywords/Search Tags:criminal investigation, starting procedure, case-filing
PDF Full Text Request
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