| In practice of official duty related crimes investigation, the phenomenon of overstating the filing conditions artificially and no solving without filing cases is very common. Whether this phenomenon would be contrary to original intention of the legislation? What are the harms and the reasons for this phenomenon? How should we respond to this phenomenon? These problems need to be concerned about the theoretical study. First of all, this article will interpret filing conditions from the theoretical perspective and analyze its meaning and value. Based on this, the second part of the article will examine operational status of filing conditions on the official duty related crimes and analyze the performance and harms about overstating the filing conditions. Finally, the third part of the article will analyze the causes of overstating the filing conditions and propose corresponding solutions, so that it can regulate investigative behaviors of prosecutors, prevent abusing investigative power and investigative omission, fight against crimes and safeguard the legal rights and interests of the prosecuted party.Except the introduction part, there are three parts of the text which totally include 33,000 words.The first part interprets filing conditions of official duty related crimes from the theoretical point of view. According to article 110 of Criminal Procedural Law, combined with five specific filing standards Supreme People?s Procuratorate established that is the amount of standard, quantitative criteria, standard plot, the consequences of standards and comprehensive standards, we can see that the filing conditions of official duty related crimes specifically refers to exist official duty related crimes objectively, and prosecutors should be held criminal responsibility of people. The former is the fact conditions of filing, the latter is the legal conditions of filing. Filing procedures as a start-up program of formal investigation. In this case, people have low awareness of the facts of the case, which determines that filings do not need really full facts of the crime as a basis, and filing conditions should be lower than detected condition, conclusion of the investigative condition, seized, prosecuted and convicted condition, they must be distinguished in judicial practice. Correctly understand and apply the filing conditions helps to regulate investigative behaviors, prevent abusing investigative power and investigative omission, and achieve the organic unity of the fight against crimes and the protection of human rights.The second part examines the operational status of the filing conditions of official duty related crimes. From an operational point of view in practice, there is a phenomenon of overstating the filing conditions artificially and no solving without filing cases in the filing of official duty related crimes, which is as follows:(1) Preliminary investigations generally take a working model, which is the first to collect confessions and then collect other evidences to prove the crime. In judicial practice, the confessions are essentially obtained in the preliminary investigation, this situation which is not to get confessions occurs rarely.(2) Prosecutorial organs mainly obtain confessions by assisting in the investigation and “double measures” of discipline inspection organs in the preliminary investigation activities, which avoid the legislative provisions on the interrogation of suspects and violate the legal rights and interests of the prosecuted party.(3) Preliminary investigation undertakes most of investigative work, and appears a phenomenon which uses preliminary investigation instead of investigation and a preliminary investigation of investigative trend. Some investigative and compulsory measures which should be only taken in the investigative stage can be taken in the preliminary investigation.(4) Generally at the end of the preliminary investigation, if there are confessions of the surveyed and the main facts of cases which are basically checked clear, prosecutorial organs will be filing. Otherwise, prosecutorial organs will not file the case.(5) After the filing, investigative activities are mostly engaged in investigation of mop-up work which is concluded its investigative work. Meanwhile, some cases still have some problems of digging other crimes and expanding the results. Harms generated by overstating the filing conditions are as follows: on the one hand, this causes that prosecutorial organs could not file the case timely and prevent investigative omission, and affects the efficiency and effectiveness of the fight against crimes. On the other hand, this actually avoids the legislative provisions on the investigative procedures, which causes that investigative power is abused and the legal rights and interests of the prosecuted party are seriously violated, but also leads that the function of confirming the identity of the suspect which filing conditions have could not play, and affects the exercise of rights of the prosecuted party.The third part analyzes the causes of overstating the filing conditions of official duty related crimes, and proposes measures to solve the problem. There are some reasons behind this problem. Firstly, perceptions in the law implementation are incorrect, prosecutorial organs have a perception of “stress fighting and ignore protection”, “stress entity and ignore procedure”, “stress confession and ignore material evidence” and other misconceptions. Secondly, assessment indicators are unreasonable, the presence of emphasizing on assessment of the number of filed cases, strictly control withdrawn rate, the rate of non-prosecution and acquittal rates and other issues. Thirdly, investigative mechanisms are imperfect, the presence of insufficient clues, individual combat and long anti-corruption issues. Fourthly, the professional level of investigative team is not high, the presence of a single structure of knowledge, lack of overall investigative skills and experience and other issues. Therefore, we should make efforts in the following four aspects, so that the filing conditions of official duty related crimes can be applied in practice. Firstly, prosecutors must change their perceptions in the implementation of the law, in order to establish the perception of punishment for a crime and protection of human rights, both substantive justice and procedural justice, confessions and material evidences and other right perceptions. Secondly, assessment indicators should be improved, including improving assessment methods which emphasis on the number of filed cases, and cancelling the control of withdrawn rate, the rate of non-prosecution and acquittal rates. Thirdly, investigative mechanisms must be improved, promoting the integration of the investigative mechanisms, broadening the sources of clues to the duty crimes, with large formation combat instead of individual combat, in order to play an advantage of overall combat. Fourthly, investigative team should be improved, improving the professional level of investigative team, introducing other non-legal professionals, strengthening the training of investigative skills, improving the technological content of the investigative equipment and political and professional ethics of investigators, in order to build a strong and high quality team. |
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