An Empirical Research Of Supplementary Investigation During Review And Prosecution Stage

Supplementary investigation,as a procedural backflow mechanism in China's criminal procedure system,runs through three stages of review of arrest,prosecution by procuratorial organs and trial by courts.Its main purpose is to find out the criminal facts and improve relevant evidence.This article is based on the discussion of the supplementary investigation in the stage of review and prosecution.Understanding the current situation of application and existing problems of supplementary investigation by analyzing the practical data during the stage of examination and prosecution.And,it recognizes that due to the lack of legislation and corresponding supporting measures,problems such as misuse of withdrawal procedure,inadequate protection of human rights of criminal suspects,and unsatisfactory quality of supplementary investigation are arising in practice.Hence,The supplementary investigation did not play its expected function.On this basis,through the analysis and discussion of the reasons behind the problems,this paper puts forward the corresponding improvement countermeasures for the supplementary investigation.In addition to the introduction,the paper discusses the return of supplementary investigation in the stage of examination and prosecution from four parts.The first part is an overview of supplementary investigation in the stage of review and prosecution.By analyzing the current legal provisions and referring to the general theory of academia,it makes necessary analysis and summary of supplementary investigation in the stage of review and prosecution,which paves the way for the following analysis and research.Firstly,through combing the development and evolution of the return investigation system,we can understand the original intention of the design of the return investigation and the historical process of continuous improvement;then,combined with the different views of the academic circles on the return investigation,it concludes that the supplementary investigation has the attributes of investigation and procuratorial supervision.Finally,it is recognized that the design of the withdrawal system takes substantive justice and procedural justice into account,and it can also play the role of reconciling contradiction litigation efficiency and judicial justice.The second part is mainly about combing the operation status of supplementary investigation and revealing the problems in practice.Through the data in practice,we can see that the proportion of returning investigation is relatively high,the phenomenon that the sametype of cases are returned again and again is more common;"unclear facts,insufficient evidence",as the legal condition of supplementary investigation,is be used frequently.It can be conclude to three problems.firstly,the application of supplementary produce is high.Its conditions can not play a guiding and binding role,and some cases do not suit the conditions for returning investigation are returned.Secondly,human rights are not guaranteed in the cases,the criminal suspects detained in the supplementary investigation stage are difficult to change the compulsory measures,and the suspects' right to know,to dissent,to appeal and to complain are difficult to implement.Thirdly,the effect of the supplementary investigation is not satisfactory.The rate of the second supplementary investigation after the first the supplementary investigation is pretty high,and the rate of cancellation after the second supplementary investigation is also high.The third part is to analyze the reasons for the problems in returning supplementary investigation in the stage of review and prosecution.From the perspective of litigation structure,there are two main reasons: firstly,under the influence of investigative centralism,in the case of dislocation of investigative powers and responsibilities,the procuratorial organs undertaking adverse consequences of investigation also make the effect of returning investigation unsatisfactory.What's more,the existing mode of separation of investigation and prosecution makes it difficult for the procuratorial power to effectively restrict and supervise the investigative power.Secondly,in the aspect of procuratorial's guidance for investigation,the existing guidance is superficial and can not effectively improve the quality of withdrawal due to the single way of guidance and the insufficient strength of guidance.From the point of view of litigation purpose,the supplementary investigation lays particular stress on punishing crimes and neglects the protection of human rights.On the one hand,the defendant can not participate in the withdrawal procedure,and the lack of relevant right to inform and relief makes it impossible to guarantee human rights.On the other hand,the necessity of detention review has not been implemented in practice,which makes the suspects in withdrawal under long-term detention.From the aspect of specific system,the reason for the higher rate of supplementary investigation is that the unclear conditions in legislation give judicial personnel certain discretion.The lack of examination and approval in internal mechanism also relieves judicial personnel from the worries of abusing the procedure of supplementary investigation.In the absence of restraints and restrictions,it is not surprisingthat prosecutors abuse the power of supplementary investigation in pursuit of their own interests.The fourth part is putting forward specific suggestions to improve the supplementary investigation procedure which is based on the analysis of the reasons mentioned above.On the one hand,it emphasizes the external control of the withdrawal procedure,that's means power restricts power and rights retricts power.From the perspective of procuratorial organs,it puts forward the importance of procuratorial guidance and supervision in improving the quality of withdrawal investigation.From the perspective of the defense,it emphasizes that the defense should be given legal litigation rights to prevent abuse and infringement of retrial.On the other hand,we should strengthen the internal procedural control of supplementary investigation,including legislation to clarify the conditions,distinguishing the condition of "omission of crime and suspects" and self-supplementary investigation.finally,we should improve the evaluation mechanism of procuratorial organs and public security organs to promote the quality and effectiveness.