The Operational Dilemma And Institutional Improvement Of Investigation Initiation Procedure In China

The investigation initiation procedure is set up mainly to prevent non-criminal cases from entering the criminal proceedings in order to avoid the undesirable consequences of infringing on the rights and interests of innocent citizens.From a worldwide perspective,the initiation of investigation procedure is mainly divided into two models: procedural initiation and random initiation.China’s investigation initiation procedure is a typical procedural initiation mode.Unlike the random initiation of investigation,in China,the criminal investigation is opened through a specific procedure of criminal filing.Introduced from the former Soviet Union,our criminal filing procedure has been endowed with rich functional values since its establishment,and is able to play an important role in realizing the control of investigative behavior,statistical crime prevention,and in the procedural triage of cases.However,in the process of operation of the procedure,due to the deviation of legislation and judicial practice,the filing procedure has also gradually deviated from its predetermined value track.Specifically:firstly,due to the logical paradox of the filing criteria stipulated in the legislation,the preliminary investigation is widely used in the pre-filing investigation stage,but with the expansion of preliminary investigation measures in practice,coercive measures keep pouring into it,the investigation control function is hollowed out and the risk of citizens’ rights and interests being infringed increases.At the same time,because the legislation relies too much on the investigation control at the stage of filing,there is no effective third-party investigation control after the filing,which makes it difficult to achieve the investigation control from the filing to the investigation stage.Secondly,under the catalyst of the performance assessment mechanism of "solving cases",the phenomenon of "not solving cases but not establishing them" is fostered.At the same time,due to the lack of supervision of case filing,the phenomenon of illegal case filing is widespread;finally,due to the ambiguous standard of criminalization under the dual structure of "execution-crime",the procedural diversion in practice is at a loss.In addition,the legislation provides for a single way to dispose of disputes after the diversion,resulting in many administrative violations are criminalized or criminal acts are only subject to administrative punishment.These problems have seriously affected the realization of the function of the investigation initiation procedure in China,thus,some scholars advocate its abolition.However,this article believes that the setting of any system is not arbitrary,and should be rational and cautious attitude towards its abolition.In the light of China’s national conditions,we should continue to adhere to the procedural mode of initiation and improve it.The reason is that,although there are difficulties in the operation of China’s investigation initiation procedures,we should still look at and analyze these problems rationally and propose targeted countermeasures.It is possible to improve the investigation initiation procedure in China on the basis of China’s national conditions and the useful experience of foreign countries.Specifically,first of all,it is necessary to optimize the existing criminal filing standard and reform the logical paradox caused by the standard in order to eliminate its negative impact on the criminal filing practice.At the same time,legislation should be enacted to regulate the pre-filing preliminary investigation,clarify its position as a criminal investigation act and regulate the measures of preliminary investigation.And build a judicial review system to prevent the abuse of coercive measures.Second,establish a scientific performance appraisal mechanism and break the anachronistic appraisal standards.At the same time,strengthen the legal supervision of illegal cases,and enhance the means and measures of supervision.Finally,to improve the problem of unclear legislative boundary between administrative violations and criminal offenses,improve the conversion mechanism between "executive-criminal" cases,and clarify the specific provisions of procedural conversion.At the same time,to enrich and improve the remedy of diversion disputes.In order to finally achieve the transformation and improvement of China’s current investigation initiation procedures.