Justification Of Investigative Measures And Judicial Construction Research

The investigative measure is one type of investigation methods,the goal of which is only understanding circumstances of the case and collect evidence.Forming a classification system of investigative measures based on the criterion of action.In practice,the investigative measure should take the arbitrary investigative measure as the main part and the mandatory investigative measure as the supplement.Therefore,the first problem of the theoretical construction of investigative measures is how to define and distinguish the classification system of investigative measures in theory and practice so as to avoid unnecessary confusion.Emphasizing investigative measures is not only beneficial to promoting the process of legalization of investigative activities,but also provides an analytical path for the technological investigation and the legalization of investigative procedure.Therefore,this paper argues that the view of investigative measures is able to provide a classification standard for investigation methods,that is,to form a judgment path of behavior-purpose-right and to a certain extent,it details the application of arbitrary investigation,the investigation purpose and the proportion principle in the investigation theory.The paper is divided into four parts except the introduction and conclusion.The first part mainly discusses the theoretical origin of investigative measures.Based on the distinction between investigative regulation and judicial regulation,investigation measures are divided into technical classification and policy classification.And the policy-based classification can be called as the right-based classification,and the classification standard is mainly based on whether the investigation acts interfere with the basic rights.The aim is to protect fundamental rights of the criminal suspect in the investigation process,and to emphasize that in the investigation process we cannot find the truth at any cost.On the other hand,the main goal of technical classification is to find out the truth,and the classification of investigation methods is to serve the investigation practice,its significance lies in enabling detectives to learn investigative measures and know how to use different investigative measures in different cases.However,with the advancement ofcriminal justice and the development of technology,the above two logical classification systems are facing many challenges,and the corresponding theoretical basis is also influenced in different degrees.The second part mainly explains the concept and the legal principles of the investigative measure.The theoretical research on the classification of investigation methods in this paper is based on the analysis of purpose,action and right.The investigative measure follows the comprehensive model of "behavior-aim-right".In the "behavior-aim" stage,investigative measures follow the guidance of teleology,and under the limitation of specific teleology,investigative measures should also be examined by the theory of rights.Therefore,the concept of investigative measures should include the following elements: Firstly,investigative measures aim at obtaining evidence;secondly,the core behavior of investigative measures is arbitrary evidence-taking measures and compulsory evidence-taking measures are the exception.The third part is to systematically classify the behavior pattern of investigative measures.In this paper,investigative measures are divided into measures and pretrial investigative measures.From the perspective of right intervention,the investigative measures can be further divided into arbitrary evidence-gathering measures and compulsory evidence-gathering measures.However,only the concept of investigative measures cannot clearly understand its behavior pattern and cannot make the theoretical investigation methods and the practical investigation methods form a substantive relationship.It is necessary to distinguish various types of investigation methods by means of typological thinking and abstracting the characteristics of investigation methods in practice so as to construct a complete behavioral system of investigative measures.The fourth part analyses the available path of investigative measures.In view of the natural expansibility of investigation methods and based on the balance of interests between finding out the criminal facts and protecting human rights,it is reasonable to restrict the application of investigation methods.As far as investigative measures are concerned,they involve not only the system division of arbitrary evidence-gathering measures andcompulsory evidence-gathering measures,but also the necessity of transformation between arbitrary evidence-gathering measures and compulsory evidence-gathering measures.Therefore,it is necessary to set reasonable procedural rules for investigative measures.In the construction of the application path of investigative measures,this paper advocates the establishment of internal self-discipline and external supervision.The internal self-discipline is based on the certification system of criminals and is divided into arbitrary evidence-taking measures and compulsory evidence-taking measures by clarifying the procedural and evidential elements of criminals' certification system.Then the external supervision is achieved through two ways: The procurator supervision investigation and the public prosecution leading the investigation.