Research On The Drawbacks And Countermeasures Of The Public Security Administrative Power Replacing The Investigation Power

In the judicial system of our country,the power allocation mode of the public security organ could be described as ‘two sides one body',which means the public security organs have both investigation power and administrative power.In the judicial practice,to some extent,there exists the phenomenon that the public security organs replace the investigation power with the administrative power.Its manifestation can be divided into two types,including the abuse of administrative coercive measures in the investigation process and the substitution of administrative investigation means for criminal investigation and obtaining evidence.This has also caused a lot of disadvantages,such as the lack of strict control of criminal procedure,the violation of the legitimate rights of criminal suspects,the evasion of the supervision by the procuratorial organs,the administrative tendency of criminal investigation.The main causes of this problem are: the standard of criminal filing is too strict,so that the public security organs can only use the administrative law enforcement procedures to meet the conditions of filing;The public security organ replaces the criminal investigation procedure with the simple administrative law enforcement procedure.In this way,the public security organ avoids the rule of excluding illegal evidence in criminal proceedings;The power allocation of ‘two sides one body' enables the public security organs to enjoy greater procedural options.Detection rate and other evaluation pressure make the public security organs use administrative law enforcement to replace criminal investigation.Based on the above reasons,the solution to this problem can be responded to in the system setting: First,we need to adjust the mode of investigation starting,including the formal introduction of the preliminary examination system into the criminal procedure,the change of the case filing examination from the substantive standard to the formal standard,and the rule of law of the active investigation starting procedure;Second,we need to regulate the illegal administrative acts by public security organs,including the establishment of standards for the division of public security administrative acts and investigation acts,and the improvement of starting standards for some public security administrative acts;Third,we need to strengthen the supervision over filing cases by procuratorial organs,including the combination of criminal case filing supervision and administrative law enforcement supervision,and strengthening the rigid effectiveness of supervision by procuratorial organs over case filing.