The Justiciability Of Investigative Action

As an important stage of criminal proceedings, investigation plays a very important role in realizing the aim of punishing criminal and safeguarding human rights. At present, in order to crack down and prevent crime,laws of China entrust legislative organs strong power of investigation which,however,has not been necessarily restricted,inevitably leads to violations of the human rights of the suspect. Therefore, it has significant fluence on achieving investigating authorities’balancing between executing power of investigation and the protection of human rights. Modern society judicial relief is the core of right relief, and the behavior of judicial relief is based on justiciability.To ensure that suspects can receive reasonable remedy and protect the basic human rights of suspects when infringed by illegal acts of investigation of the investigative organs, we should establish the system which based on the justiciability of act of investigation. Therefore, this article will be divided into the following sections:The first part illustrates the relevant concept of act of investigation including:the concept of investigation and the definition of act of investigation,concludes that there exists consistency on the understanding of concept between the act of investigation and the narrow investigation not include compulsory measures;therefore the power of investigation is the one enjoyed by investigative organ in the process of investigation,which belongs to executive power and features in its initiative, efficiency differing with the judicial power. In order to clear charged object on the procedures for the other party and protect their legitimate rights and interests even better, we can consider it from the perspective of "integration of the relationship between the prosecutor and police", making the part of the power of the procuratorial organs enjoy by the public security organ, making the public security organ be the sole subject of investigation. Then the meaning of justiciability includes the justiciability of law and the justiciability of legal act. So when it comes to the attitude on writing, we are in favor of the justiciability of legal act and appropriately draw the reasonable composition justiciability of law.The second part includes the necessity of the justiciability of investigative action lies that: first, it’s the effective remedies to restrict investigative action, establishing the justiciability of investigative action can make investigative action to run better on the rule of law under the restriction of the courts; secondly, the inevitable requirement to maintain the balance between prosecution and the defense,in order to protect the equal status of criminal suspects in the prosecution and break the too poor prosecution-defense structure between the investigating authorities and the suspects,it is necessary to endow rights to the courts for the suspects; finally, the practical needs to line with international standards. Western countries in the course of investigation activities has been made more advanced practices and beneficial experience about judicial review of the investigative action which is worthy learning,the relationship between our country and the world become increasingly closer and closer,so we are required to accelerate the legislative process to ensure the justiciability of investigative action.The third part mainly talks about the legal basis of the justiciability of the investigative act, includes the two-way mode of operation of the law whose essence lies that it opens a channel for the other party to safeguard his legal rights so as to make the civic rights restrict the investigative power, achieving "the right to control and supervise of power"; by dividing the state power, achieves that judicial power restrict the executive power which means the theory of check and balance; investigative organs are required to execute power reasonably and fully listen to the views of the parties which means the due legal process and the principles of law reservation, lastly the protection of human basic rights;The last part illustrates the system construction of the justiciability of investigative act. Due to the scholars of administrative law believe that the investigative act belongs to the act of criminal justice and do not confess its justiciability. Therefore, it is very necessary to establish a comprehensive system of the justiciability of the investigative act step by step. First, make sure the investigative act could be justiciable. Second, we must establish a system of judicial review,for justiciability in fact essentially means judicial judgment of the court, that is, the court’s judicial review.Finally, in order to effectively protect the rights of citizens on the constitutional level and ensure that when citizens are being illegally violated by the investigative organs they can appeal to judicial relief, so our ultimate aim is to establish a constitutional litigation system so that the constitutional provisions of’respect and protect human rights" can truly achieve in our daily life.