On Restricting And Supervising Power Of Investigating To Crime By Taking Advantage Of Duty

Procurator organ is a legal supervision department in China, which has a statutory authority to investigate the crime by taking advantage of duty. During the reform procedure of the judicial system and working mechanism, to strengthen the supervision on the crime by taking advantage of duty is an important issue. Therefore, to summarize the supervision mechanism on the investigation of job-related crime and find out a feasible and scientific solution about it is of importance.The study aims to explore the effective mechanism of how to improve the supervision right on the crime by taking advantage of duty investigation in our country. After putting the constitution position of procurator organ and its authority to investigate on the crime by taking advantage of duty together and comparing, some critics brought up a question that who would take an eye on the supervisor; such is that who would take an eye on the procurator organ supervision. And then, finding out the validity of procurator organ supervision authority on the crime by taking advantage of duty now becomes the first question to be solved for exploring the regulating mechanism of the supervision on the crime by taking advantage of duty investigation. On the basis of solving the question raise up earlier, the theory first give a summary of the supervision on the crime by taking advantage of duty investigation nowadays in our country and analyze the problems and weaknesses, then it take the supervision mechanism overseas as a reference, in the end, there raise up that, as to strengthen the supervision mechanism on the authority of the crime by taking advantage of duty investigation, the internal constrains should be the basis and external constrains be the security.To express the supervision and regulation mechanism on the crime by taking advantage of duty investigation, my theory gives a detailed analysis that which organizations and individuals can supervise and how they work, and the organizations and individuals are mainly including the internal supervision departments such as the control and inspection department, the investigation supervision department, the public prosecution department, the procurator prison department, the superior department of prosecution and so on, the external supervision are including the Party committee of institution, People's congress, People's supervisor on judicial, People's court and lawyers. By analyzing the internal and external supervision, it gives a conclusion that all the constraints are not well authorized, let alone the rules of supervision mechanism, even public security organs and People's court which should have the relationship of mutual promotion and mutual restriction with procurator organs under the criminal procedure law, law is lack of practically compulsory provision on supervision and restriction. When it refers to the supervision mechanism on job-related crime investigation, it shows that there lacks of supervision rules externally and the supervision strength is weak internally.We can find that in the constitution and other relevant regulations, except for People's congress, People's court, the public security, lawyers and procurator organ there lacks of legal basis for other departments to involve because the work requires highly confidentiality. Look at the power attribute of People's congress, it can constraint and regulate the prosecution work of the crime by taking advantage of duty investigation, and it will have a brilliant future, if People's congress can give a effective restriction on the crime by taking advantage of duty investigation, it can play a great role on promoting the supervision mechanism by other organizations and individuals. From looking on the properties and duties of People's court, public security and lawyers, we can find that the supervision authorized to them is limited. Considering the characteristics of People's court, it can't intervene in the investigation activities beforehand or among the procedure, and the judgment of the court is difficult to play an effective role on supervision as well. The relationship of coordination and restriction between public security organ and procurator organ mainly concentrated in the ordinary criminal cases, as for the supervision of job-related crime investigation, the relationship is difficult to get specific reflect. Lawyers need to participate in the crime by taking advantage of duty litigation activities to exercise the supervision so as to guarantee the right and interest of the suspects'and the accused. For the revision of Criminal Procedure Law is lag behind the Law on lawyer, the rights of the defense lawyers can't be exercised effectively, and it lead to a result that the supervision of lawyer can't be exercised effectively. The system of people's supervisor advocated by procurator organ is of most efficacious nowadays, for it is neutral to overcome the internal system's disadvantages, that dare or unwilling to supervise, and it has an extensive participation as well, which improves the effectiveness and transparency of the supervision. But the system of people's supervisor has widely questioned now, not just for it is advocated by prosecution, the law does not expressly regulate it now, but the people's supervisor should be appointed by procurator organ and the funds was provided by procurator organ as well. From look on the properties on the supervision internally, it mainly displays in the procurator organ leading system that pays attention to coordinate and support but set no account on supervision and restriction.Thorough the analysis of the present situations and limitations of supervision authorized to organizations and individuals, my paper made a conclusion that the system of the crime by taking advantage of duty supervision can be perfect by amending the relevant law and playing the function of People's congress, people's supervisor, lawyers and the superior prosecution.