Proportional Principle Of Mandatory Investigation

The principle of proportionality is named "imperial terms" in the field of modernpublic law,which regard justice as the ultimate goal, in proportion as the bottom lineof social order. Its unique balance thought can restrict state power and protectindividual rights effectively. The principle of proportion is stipulated explicitly in thelaw in many other country, some even rise to its constitutional principles, and use it asa review of the basic rights infringement cases directly. In the field of administrativelaw in our country, the principle of proportion in academia and practice has broadconsensus. In recent years, scholars have come to realize that the proportion principlein the field of criminal procedure is of great potential, and try to establish feasiblemechanism of China’s criminal proceedings.In the modern country under the rule of law, the operation of the investigationpower to solve the case is worthy of recognition, however, the infringement ofinvestigation power to private rights is undeniable, some even result in irreparableconsequences. Compulsory investigation, there is no clear concept in the criminalprocedure law in our country, but according to the way and the nature of theinvestigation in our country, you can see our investigation is mandatory to someextent, It can be said that the compulsory investigation is an effective carrier ofinvestigation power, especially in the background that a good supervision system inour country has not yet formed. Although the new criminal procedural law realize theproblem, the relief mechanism is still lack of operability. The introduction of theproportional principle can overcome the mandatory of the investigation to someextent.The value of the principle of proportion is conveyed by many rules in thecriminal procedure law,but the legislation has not affirm its status. The passagemainly compared with foreign legislation and practice on the use of the proportionprinciple in order to absorb the advanced experience and consummate our countrycompulsory investigation according to the provisions of the proportion principle. In addition, to carry out the principle of proportion in the compulsory investigation,legislation of proportionality is not enough to be clear, we also need to establish aseries of auxiliary system, such as judicial review system, the case guidance system,procedural sanction mechanism, etc..These can make the abstract proportion principlerich operability and the spirit of proportion principle plays incisively and vividly inpractice.