On The Dilemma And Countermeasures Of The Preparatory Investigation Into Crimes By Taking Advantage Of Duty

From1983to1999, the preliminary investigation system of duty crime was generally established with a series of judicial interpretation issued by the Supreme People’s Procuratorate. The formation of the system has its own profound historical, practical and legal causes.From a historical point of view, the origins of the duty crime clues that procuratorial organs handle have changed greatly. The situations that the victim units survey against the duty crime case and transfer relevant clues to procuratorial organs have gradually diminished,meanwhile the masses complain with the name or anonymous way due to be excited by sharp growth of the duty crime such as bribery case. However, these case clues are often rough, fuzzy, and the boundary between crime and non-crime is often unclear. In order to achieve accurate filing purposes,it is necessary for the procuratorial organs to obtain relevant evidence to prove that the facts of a crime really exist through the investigations, beside that written materials is reviewed when in a case before the decision on the duty crime clues. From view of the reality, complaints and information are the main source of duty crime clues at present,but the clues are of poor reliability and rough. Rash filing without deep and meticulous preliminary investigation,do not accord with "firm and careful " working principles. In addition, the duty crime is often interweaved with personnel struggle and economic disputes together. Rash action may put the work into trouble, and inevitably leads to low quality and damage of the image of the procuratorial organ. From the point of legal provision, the86th clause of "criminal procedure law" provides that" there are facts of a crime and criminal responsibility should be investigated",which is the basic conditions. How to comprehend correctly the "the facts of a crime" standard is the key to the problem. However, ascertaining of criminal facts can not be presumptuous, they can not be judged only by simple review of complaints and information. This prompts the case-handling organ to take some investigation, collect evidence for ascertaining case, in order to check if the case conforms with the requirements and collect the necessary evidence base before the decision is made. Driven by a variety of factors, the formation of duty crime preliminary investigation system has been initially established, Nevertheless, it is still an immature procuratorial system, which has no deep theoretical foundation and even does not have the clear concept. However, with regard to the fact that legal concepts act as the important tool of the legal thinking, legal reasoning and legal application is still undeniable, the legal concept of maturity is a kind of measurement of whether the legal system is perfect and mature. At this point, the perfection of the legal system will inevitably require to refine the mature concept of preliminary investigation i.e." At the review possible crime clues,the people’s Procuratorate take necessary preliminary investigations to ascertain the provisions of the criminal procedure law are satisfied".Due to the following factors:the lack of provisions of the concept of preliminary investigation in criminal procedure law of China, the low corresponding of the theory to the practice of the system, the insufficiency of preliminary summary of practical experience, defects of research methods inadequate research of preliminary investigation measures, supervision, responsibility and correlated remedies, and inadequate comparative research on the system factors, the duty crime preliminary investigation system is put in an embarrassing context, faced with many difficulties. The context mainly concentrated in the following areas:the legal dilemma such as without the criminal procedure law authorization, preliminary measures encounter the defects of in the legal status, the legitimacy of evidence obtained; the dilemma of the lack of human rights security:the absence of power supervision,insufficient attentions of human rights protection, and so on; the practical dilemma:lack of concrete regulations on preliminary investigation, lack of standard procedures, single,rigid and traditional measures, low efficiency of investigation; the system was formed in the duty crime cases investigation meting with special needs, showing substantial rationality and legitimacy, Meanwhile this power can also be abused,which brings forth philosophy’s dilemma.In response to this predicament, the following several aspects of the duty crime investigation system should be taken into account:from the angle of methodology of investigation, to clarify legal concepts and perfect legislation; from the comparative study of the view, to improve our file starting mode, in line with the actual needs; from theory and practice perspective, to strengthen investigation of practical experiences, including the establishment of investigation work of the four principles; to formulate a unified of legal instruments of investigation stage and enhance the formats and standards; to build information platform, realize the information resources sharing, and to improve the efficiency of investigation.