Research On Prosecutor-investigated Cases In Applying Non-custody Measures

As an important part of criminal procedural system, coercive measures of non-custodymesures play a key role in the criminal procedure. Along with the deepening reform of justice,democracy and the rule of law continues to ameliorate. As restriction of personal freedom tospecific coercive measures, non-custody measures, in its quest for balance between executionof national power and protection of people’s rights, highlights the unique advantage. Tobroaden the applicability of non-custody measures has become the trend of modern criminalprocedure development, as well as the important direction of the reform of our nationalcriminal prosecution system, which gradually draws more and more concern and attentionamong the law theory circle&judicial practice. Especially for prosecutor-investigated caseshandled in The procuratorial organ, considering duty crime is different from general crime,applying non-custody measures has irreplaceable superiority. In recent years, many academicfruits have achieved from the theoretical study on reforming framework, perfect path ofcoercive measures&non-custody measures. While from the perspective of empirical analysis,analysis of the prosecutor-investigated cases on how to apply non-custody measures, andimprove the system of criminal lawsuit are less involved in. The author comes from the dutycrime investigation department, who has engaged in front-line investigation of theprosecutor-investigated cases and comprehensive guidance. Based on the judicial practice inprosecutor-investigated cases’ applying non-custody measures, the paper studies the existingproblems,&gives in-depth analysis of the cause of the problem. Together with the revision of2012"PRC Criminal Procedure Law", and drawing lessons from the successful experience ofother countries, it makes a preliminary discuss, putting forward the conception of"countermegasures" reform, with purpose of providing some valuable reference for legislature,public security and judicial authorities.This paper is divided into three parts, and comes to some26,000characters.The first part dwells on the present status of the application of non-custody measures inprosecutor-investigated cases. Through the forms of questionnaire survey, field visitdiscussion,&consulting the file of relevant cases, the paper targeted the application situationof non-custody measures in prosecutor-investigated cases in G province. The researchindicates in judicial practice application of coercive summons is less, or even long "idle"; which goes against basic legislative purpose; Application of released on bail is relatively mostand the number of cases increases year by year. Its advantages of tempering justice withmercy, preventing detention beyond the legally prescribed time limits and asserting leaglrights become more and more prominent; Cases of residential surveillance is least, anduneven development exists among regions. Law enforcement standard of residentialsurveillance is different, and executive body&implement site dislocated. In some cases, it iseven positioned in creating conditions for arrest procedure. The decision and implementationof it is relatively more chaotic, which goes against legislative purpose.The second part is the existing problem and reason analysis in application ofnon-custodial measures in the prosecutor-investigated cases. The part is the stress of the paper.From the perspective of a realistic study, It thoroughly researches the existing problems of thesystem design and the actual implementation in application of non-custody measures inprosecutor-investigated cases. And on the basis of mathematical analysis, case judges ofreserch materials, the part analyses the cause of the problem, especially that of illegalsubpoena, extended summon, adopting release on bail without actual bail, disguised custodywhich, as hot, difficult problems, have been long troubling judicial practice. The articlereckons that the reasons for these problems are various: deviation exists in the idea of lawenforcement; Insufficiency in law enforcement capacity; Backward handling conditions;Evaluation mechanism is not scientific, as well as law orientation inaccrurate, legislation toocareless, lack of right remedy, lack of judicial supervision and so on at level of legislationdefects.The third part is the conception of reform on prosecutor-investigated cases in applicationof non-custody measures, which is innovative. On the basis of pointing out the problems&analyzing the reasons in the second part, the paper draws lessons on experience of the systemof criminal compulsory measures from Anglo-American countries&places as Shanghai etc inChina combining with the progress and deficiency of practice and legislation in the2012revision of "Criminal Procedure Law", it puts forward corresponding reform conception fromaforementioned two levels by using comparision and empirical method.The article thinks thatin practice, Firstly we should shift idea of law enforcement. Try to educate and instruct all theprocuratorial cadres and policemen to erect correct idea of law enforcement. Be loyallyinternal in heart&external in practice; Secondly, we should reform business assessmentmechanism and establish a scientific one; Change one-side pursuit of high rate of custody evaluation. Include protection of human rights into assessment scope, in view of following theguidance of law value. Thirdly we fully Improve investigation ability, strengthening the caseinput,&elevate law enforcement content of sicence and technology in accordance with thecurrent urgent need of dual goal of stiking on crimes and protection of human rights. Also inthe design of the system, and consistent transformation of China’s criminal litigation structure,we should improve compulsory measures and manifest principle of proportion, principle ofnecessity. Together with the existing problems in handling prosecutor-investigated cases, thepaper advocates such concrete reforming conception as principle of priority of application ofreleased on bail, define the ambiguous provisions existing in current laws®ulations,broaden the channels for relief of the rights, adjust the range of law enforcement body,strengthen supervision of judicial procedures, which not only ensures the criminal litigationgoes smoothly, but set necessary barriers to the interests of justice expansion by legislation,safegurding the configuration equilibrium between state power and civil rights in order tofulfilling the dual grave goals of both punishing crimes and protecting human rights.