The Limitation Of The Procuratorial Organs’ Investigation Power

The discussion of the procuratorial organs’ investigation power is heated in theprocess of modification of the new criminal procedural law. In order to maintainpublic interests and national specific powers’ effective, fair and justice, china’sprocuratorial organs have complete investigation power for the part of the criminalcases. In the process of indictment exercise, due to find out the case fact, seized acriminal suspect, procuratorial organs will take the necessary means of detection.criminal investigation measures, including the compulsory investigative measures,will have a direct impact on citizens’ basic rights such as freedom, property andprivacy in different degree, causes the citizen’s fundamental right within a certainperiod of time or be restricted or deprived directly. Therefore, it is necessary forinvestigation power of procuratorial organs to give restrictions, to prevent the citizenrights and the law order from abusing of investigation power, and balance theindividual rights protection and maintenance of the national public interests in theprocess of exercise of procuratorial organs indictment. This article analyzed theconnotation, characteristic of procuratorial organs’ investigation power and its legalnature, presented the operational problems of procuratorial organs’ investigationpower by case analyzing, and proposed own view about the limitation of theprocuratorial organs’ investigation power.Procuratorial organs’ investigation power include independent indictment andsupplement indictment, has its own unique characteristics. discussion of inwardnessof the procuratorial organs’ investigation power was highly controversy in china,There are four theories: administrative power, judicial power, judicial executivepower, legal supervision power. this article compared the basic features ofprocuratorial organs’ investigation power with the basic features of administrativepower and judicial power, and came to the conclusion that procuratorial organs’investigation power belongs to administrative power.In order to maintain public interests and national specific powers’ effective, fairand just, law endows the procuratorial organs to investigation power. however, in the process of specific exercise of investigation power, the citizens’ legal rights bearserious and potential harmfulness. we analyzed specific case that the procuratorialorgans abuse investigation power in practice, came to the conclusion that the mainperformance of problems of the procuratorial organs’ investigation power in theoperational process. First, procuratorial organs’ filing procedures exist illegal andimproper. Second, in order to obtain evidence, the investigation procedure existseverely torture and other illegal means. Third, it is the misuse of compulsoryinvestigation measures which make the defendants’ rights unprotected.In the process of the new criminal procedure law’s changing, perhaps theprocuratorial organs’ technical detection power is the most controversy, the voice ofincreasing technical detection power of the procuratorial organs and opposition isvery high in the legal practice and theory. and this round of modifications of criminalprocedural law increase technical detection power of procuratorial organs and mainlyconsider two things: first, procuratorial organs’ self-investigation cases generally havemore concealment, not at the scene of the crime, the criminal suspect who have ahigher social status form the block of procuratorial organs’ investigation work, andsuch cases have the most serious social harmfulness, and directly harm the rulingfoundation. second, it is necessary to protect human rights and minimize torture. Atthe same time, the law was not awarded the technical detection executive power toprocuratorial organs, this mainly consideration is the following two points: first,technical detection power is concealment in the process of implementation, its abuseis difficult to detect, and have great potential threat for citizens’ legal rights. Second,the procuratorial organs’ technical detection power could become a tool of politicalstruggling and factional fighting. the new criminal procedural law restricted illegalcompulsory investigative measures and seizure, detainment, freezing measures thatthe procuratorial organs exercise investigation power, enhance the rights of thedefendants, improve the procedures of pre-trial hearing, and implement limitedexclusionary rule within the finite scope. these measures and regulations strengthenprotection of the defendant’s rights, enhance ability of the defense, and balance statusof investigation power and the defense. but these restrictions of the new criminalprocedural law lack of consequences sanctions and specific implementation measures, it is questionable that whether the new criminal procedural law will have the effect oneffectively balancing protection of public interests and individual rights, in practice.Aiming at the problems of the operation of procuratorial organs’ investigationpower and the limitation of the new criminal procedural law of the people, the authorbelieves that we want to basically supervise the abuse of the procuratorial organs’investigation power, mainly from the following points. First, our laws shouldestablish and carry out the concrete procedural sanctions for investigation powers.Second, Establish relief mechanism of judicial review at the procuratorial organ’sinvestigation procedure. Third, we should strengthen the rights of defendants at theinvestigation procedure.