The Judicial Review Of Compulsory Measures In China

Crime-fighting is one the purposes of the criminal proceedings.For the sake of realizing this purpose exactly,it is quite fundamental and key to obtain more evidence in the investigation stage for ascertaining case fact.Therefore,it is essential to organ of the criminal investigation to get evidence through the methods of compulsory measures,such as search,seizure,physical examination,arrest and so on.In the process of criminal proceedings,compulsory measures are not only just a single act in action which has an effect of driving the litigation progress,but also a virtual intervention to citizen' s basic rights which are protected by constitution.Thus,the essence of compulsory measures is both procedure and entity attributes in litigation act.Based on this very cognition,it's usual that a neutral judge do the legality review and make a decision to the organ of the criminal investigation's application behavior of compulsory measures.As for the situation in our country,the Criminal Procedure Law of the People's Republic of China stipulates five compulsory measures.The existing system of compulsory measures has a lot of deficiency and faultiness:on the one hand,its pointing to the right object is restricted to the right of personal liberty,excluding the protection of other significant basic rights like property right,privacy right and so on;on the other hand,it has a few kind that many measures like search,seizure,physical examination and so on are not compulsory measures but common investigation measures,which caused the pointing to the subject being limited to suspects and defendants,excluding the protection of the third party like witness.What's even more crucial is there is no place for a judge to step in to do the legality review under the stipulation we have now.Only arrest must need the people's procuratorate's examination and approval,and the rest of four compulsory measures can be taken by the public security organ directly.For the purposes of safeguarding human rights and building a trial-centered criminal litigation system,it's very necessary to establish the judicial review system of compulsory measures.To achieve this goal,in the first place,we need to refactor the existing system of compulsory measures.We should bring part of investigational acts,like search,seizure,physical examination and technical investigation measures,into a new system of compulsory measures which could be a complete one aiming at the rights of personal liberty,property,privacy and personal dignity of suspects,defendants and the third party;in the next place,we need to set up preliminary judges,who can make search,seizure,physical examination,arrest only being carried out after the preliminary judges doing a prior review and making a agreement,or doing a post review in an emergency to judge its implementation being legal or not.