Litigation Reform Of China's Investigative Procedures

The litigationization of investigation is to imbue investigation with the virtue of entity,procedure and efficiency by constructing the procedure into a sructure of three parties confronting according to the some fundamental rules,character and mechanism of litigation;to relize the participation of judge,the supervision of investigation power,the consolidation of right to defense and the construction of mechanism of punishing through procedure.This thesis starts from the types of investigation procedure,analyzes the fundamental theory,the character and definition of litigationization and the legislation practice of the primary countries under the rule of law,and further makes analysis of the status and innovation of our country's investigation procedure.The aim of the paper is to enrich the investigation theory and bring practical significance to the innovation of litigationization of investigation in China.The first part analyzes the theory basis of litigationization of investigation.Procedure Justice Theory is the primary value object of the criminal proceeding and its essence is the theory of procedural restriction of power.This theory requires that the investigation possesses the nature of independency,neutrality,equality, participation and science and imbues the state functionaries excising the state power into the procedure orbit with litigationization.Law is a powerful tool for protecting the human right and the protection of human right by litigation is the symbol of law progress,which requires constructing the investigation procedure on the basis of right.Power Balance Theory requires the participation of judicial rights and judicial examination as the basic premise and requirement of judicial structure for investigation procedure.The second part analyzes the definition of investigation litigationization and introduces the investigation litigationization practice of the primary countries under the rule of law.The definition of investigation litigationization(i.e.rationality requirements) mainly includes three aspects:equal confronting of the proceeding parties,establishment of the judicial examination,and establishment of the punishment mechanism in criminal proceeding.The investigation litigationization practice of the primary countries under the rule of law embodies the character of litigationization and provides a practical standard for the practice of litigationization in China.The third part analyzes the present status of litigationization of investigation in China.Due to the absence of judicial supremacy idea, the investigation procedure in China is of administrative nature and appears the model of the combination of investigation organization and suspect.The investigation procedure in China is controlled by investigation organization,lacks indifferent judgment body and results in the relativity and the object status of the suspect,the restriction of the lawyer's proceeding rights,the imbalance of the proceeding parties and the conflict of procurator and police in judicial practice.The fourth part requires reorganizing the investigation in China at the aim of litigationization.The primary reason for these problems is the absence of litigation quality in our country's investigation procedure.So we shall under the guidance of balance idea,at the aim of litigationization and at the basis of our criminal judicial practice to rebuild our country's investigation procedure.We shall strengthen and protect the defense right,innovate and optimize the relationship between procurator and police,strengthen the judicial control to investigation and build the local proceeding punishment mechanism.