Analysis Of The Preliminary Investigation System Of Duty Crime In China

In China,the procuratorial organs are the legal supervision organs and the legal organs established for investigating and dealing with accordingly the civil servants' duty crimes.Since 1980s,along with the worse duty crimes,the procuratorial organs have been receiving increasing clues of the duty crimes.We should adhere to the principle of "determined,prudential and unmistakable" towards the duty crimes to promote the quality and efficiency of the cases.To confirm the authenticity of the clues,the procuratorial organs should take preliminary investigations into the clues of the duty crimes.The procuratorial organs have gained a preliminary Investigation according to their experience of the long-term juridical practice.The Supreme People's Procuratorate has successively unveiled a series of judicial explanation of the tasks,purposes,approaches for the rules of the preliminary investigation into the duty crimes,which has produced a preliminary investigation system of duty crime.In the judicial practice,the preliminary investigation system has been playing an increasingly important role in the investigation and management towards the duty crime for the procuratorial organs.However,as the Chinese Criminal Procedural Law doesn't offer any express provisions towards duty crime,the preliminary investigation system of duty crime is illegal in form.Because of this,in the judicial practice,the procuratorial organs are often caught in an embarrassing situation when it is referred to the right of preliminary investigation.Meanwhile,both the new Attorney Law and Criminal Procedural Law have established the rules of Presumption of Innocence and Illegal Evidence Exclusion.Besides,they have also fully ensure the attorneys' right to meet the criminal suspects,to read the criminal files and to debate,which has upgraded the protection of the criminal suspects' human rights.There have been controversies over the problem about how the legal supervision organ---the procuratorial organ can realize its self-supervision.Since the right of preliminary investigation into duty crime is carried out only in the form of judicial explanation by the supreme people's procuratorate without legal authorization,the possibility of self-empowerment remains.Before the fundamental reform of the Chinese criminal procedure's basic framework,the start of the criminal procedure is still marked by filing.In the present judicial environment,the procuratorial organs are confronted with severe tests in the investigation and management of duty crime.The procuratorial organs have reached a consensus to arrange the investigation in the preliminary investigation.On one hand,being lack in legal status,the preliminary investigation system of duty crime is confronted with a series of questioning and doubting;on the other hand,the importance of preliminary investigation system of duty crime is advancing with times.In this thesis,the author studies the preliminary investigation system of duty crime according to the practice,which focuses on both its values and defects aimed at putting forward legal and judicial advice to upgrade the present preliminary investigation system.The first section offers the concept,characteristics,tasks of the preliminary investigation system of duty crime of the procuratorial organs and the history,causes and development of duty crime.The second section analyses the necessity of the preliminary investigation system of duty crime,which explains completely the functions and values of the preliminary investigation system.The third section analyses the deficiencies of the preliminary investigation system of duty crime in China from the perspective of legal and judicial practice.The fourth part analyses the positive and negative side of the preliminary investigation system of duty crime in China.Then it introduces and compares the different investigative and handling systems towards duty crime in the representative countries of the Civil Law System---France,Italy and Japan and the representative countries of Anglo-American Legal System---Britain and U.S.A,which results in positive enlightenment for improving the preliminary investigation system of duty crime in China,esp.for speeding up its legislation.The core of this thesis lies in the fifth section,in which the author offers some legislative and judicial suggestions for the preliminary investigation system of duty crime in China.For the legislative suggestions,there are 3 stages.Firstly,improve the judicial explanation of the preliminary investigation system of duty crime to normalize and systematize the preliminary investigation system of duty crime in China.Secondly,establish the preliminary investigation system of duty crime in our national criminal procedure law to figure out a series of problems resulted in the formal illegality of preliminary investigation system of duty crime,such as the preliminary investigation being questioned for its legality of the evidence in the judicial practice,the limitation on the measures of preliminary investigation and the lack in mandatory questions.Thirdly,put forward special legislation for the anti-corruption in the long term and bring the preliminary investigation system of duty crime into special legislation.For the judicial suggestions,there are some measures as following to improve the efficiency of the preliminary investigation:Firstly,strengthen the extension,management,analysis and assess of the clues to the cases;Secondly,upgrade the construction of intelligence information;Thirdly,adapt to the current situation by offering professional training to improve the efficiency of preliminary investigation;Fourthly,implement the censorial organizer accountability;Fifthly,normalize the preliminary investigation;Sixthly,strengthen the supervision.By implementing the six measures,the preliminary investigation is expected to improve its efficiency and prevent the abuse to protect the civil legal interest.The preliminary investigation system of duty crime in China is experiencing a gradual development to reach its maturity,which needs the resultant force deriving from the consensus from both the judicial circles and the theoretical circle of law.