The Study On The Supervision And Restriction Mechanism Of Power Of Procuratorial Investigation

This doctoral dissertation consists of an introduction, five chapters and a conclusion.Introduction relates the purpose of this study, research status, research thinking andresearch methods. Procuratorial organ had the right to criminal activities of supervision, butalso enjoyed a strong power of investigation in our country. So, how to effectively control thepower of procuratorial investigation, to prevent its abuse, was a theory and practice problem. Itis very important for the control of power of procuratorial investigation that the supervisionand restriction mechanism of power of procuratorial investigation was ceaselessly perfectedover the years. However, the power of procuratorial investigation not only was constantlyquestioned on theory, but there were many abuses in practice. How to prevent the abuse of thepower of procuratorial investigation is still a problem in our country. In view of this, this articlefocuses on the supervision and restriction mechanism of power of procuratorial investigation.According to the theory and practice of the control of power of procuratorial investigation, theextensive and thorough research had been done, and obtained a lot of achievements. However,existing research still has many deficiencies, it is necessary to further study on the basis of theprevious research. This paper from the following thinking: Firstly, based on the existingresearch without discrimination the supervision and restriction mechanism, and controlmechanism construction of too much emphasis on the supervision mechanism in our country, itis easy to ignore the function limit of supervision mechanism. Therefore, the first thing to do ofthis paper is to distinguish supervision with restriction, and to conclude the mechanism ofpower control of them. Secondly, the foreign countries’s experience of control of power ofprocuratorial investigation could be used as mirror of our country reform, but the comparativestudy of these was not sufficient, especially the supervision mechanism of the power ofprocuratorial investigation and the power structure, as well as the limitations of supervisionand restriction mechanism on the power of procuratorial investigation. Therefore, it isnecessary to further comparison and analysis the foreign countries’s experience of thesupervision and restriction mechanism of power of procuratorial investigation. Thirdly, in viewof the existing research lack of overall analysis and reflection on China’s supervision andrestriction mechanism of the procuratorial investigation power, this article emphasizes onexisting mechanism from the rules and practical operation, and to do the necessary reflection. This paper takes the value analysis, comparative research and empirical research as the mainresearch method.The first chapter mainly elaborates the basic theory of the supervision and restrictionmechanism of power of procuratorial investigation. Investigation power refers to the powerwhich investigation organ finded the facts of cases in accordance with the law. Investigationpower includes not only the power to carry out investigation, also the power to decide to startand to end the investigation. The power of procuratorial investigation is the power whichprocuratorial organ enjoyed in criminal procedure. Procuratorial organ generally has theinvestigation power in the world scope. Macroscopically, the power of procuratorialinvestigation can be divided into the investigation power of prosecutor-investigated cases andothers. Microscopically, the investigation power of prosecutor-investigated cases includes thepower to start, implement and terminate the investigation. Other cases investigation powerincludes the power of command to investigate, supplementary investigation, and application ordecision of compulsory measures. Because the prosecutor-investigated cases are often involvedin government official corruption, which has the characteristics of intelligent, secrecy and novictim, the investigation power has the trend of aggrandizement. In theory, the supervision andrestriction mechanism of power of procuratorial investigation is needs of power control, butalso for the guarantee of human rights. In addition, this paper argues that supervision andrestriction is the two basic forms of power control, and there are great differences betweensubject and object, scope, mode of action, action time and purpose.The second chapter is comparative study of the supervision and restriction mechanism ofpower of procuratorial investigation. First of all, this paper investigates the internal andexternal supervision mechanism of power of procuratorial investigation in France, German, theUnited States and Japan respectively. The supervision mechanism has played an important rolefor controlling the power of procuratorial investigation all the counties above, but thesupervision mechanism of United States has a great difference from those of France, Germanand Japan. The supervision mechanism of power of procuratorial investigation is closelyrelated to power structure. The prosecutorial system of France, German and Japan towardsbureaucracy, the procuratorial integration becomes the carrier of power supervision. Thesupervision mechanism has a play important role in the objective and legitimacy control ofpower of procuratorial investigation, but its function has some limitations.(1) Whether or notto supervise depends on the superior in the prosecutorial organ.(2) The more powerful, more likely to abuse of power. The foreign restriction mechanism of power of procuratorialinvestigation is mainly embodied in the control by judicial power, which includes the priorauthorization or subsequent confirmation of mandatory investigation, procedural hearings, thecustody review and the substantive and procedural sanction of the illegal investigation acts.The restriction mechanism of power of procuratorial investigation has the function of powerrestriction, protection of human rights and power legalization. Like as the supervisionmechanism, restriction mechanism has the limitation of function.(1) The power ofprocuratorial investigation has the tendency to expand, while as the judicial control has aweakening trend.(2) The function of compulsory investigation prior authorization is limited.(3)Procedural sanction has its function limitation. Whether the supervision or restriction is not thepink of perfection, there are functional limitations because of the human factor or the systemitself. Therefore, the control of power of procuratorial investigation had generally emphasizedtwo mechanisms of complementary, not biased.The third chapter describes our country’s the supervision and restriction mechanism ofpower of procuratorial investigation and the cause of formation. At the beginning ofprocuratorial organ having the power to investigation according to the criminal procedure law,there has the arguments on the working mode of “a pole inserted in the end”. The presentsupervision and restriction mechanism is established by the procuratorial organ in response toquestion of the academia, which mainly includes the control by internal department, thesupervision through the leadership mechanism, the lift of decision to arrest, procuratorialoperation supervision, people’s supervisor system and so on. External supervision andrestriction mechanism is mainly the restriction by court. By many years, China has establisheda relatively comprehensive and systematic of the supervision and restriction mechanism ofpower of procuratorial investigation. The existing measures are characterized as “mainly tointernal supervision and restriction, the external as a supplement” and “mainly to supervision,the restriction as a supplement”. Its formation is closely related to our country’s traditionalpolitical and legal culture of supervision, the current political system and the interests of rulesformation process.The fourth chapter is the empirical research and analysis of our country’s the supervisionand restriction mechanism of power of procuratorial investigation. This paper shall make fulluse of the result of the existed empirical research, the official statistical data, typical case andthe Information by the interview. Judging from the current situation, although our country’s the supervision and restriction mechanism of power of procuratorial investigation in practice canplay a certain role in the control of power, but the insufficient is the consensus by the practiceand theory of community. The control by internal department is very limited. The supervisionthrough the leadership mechanism has certain control effect, but the decision is often made infavor of the sectors, and the greater of superior power, the more likely to be abused. Thesupervision by superior procuratorial organ can play an important role. However, we shouldalso see its limitation. Firstly, the principle of supervision has effected on the supervision bysuperior procuratorial organ. Secondly, the localization of procuratorial power has digested thefunction of supervision by superior procuratorial organ. The lift of decision to arrest in officialcrime is one of important measures of judicial reform in recent years, which has a certainpractical value from the result all over the country. It is mainly manifested as not-arrest rateincreased to varying degrees. But the arrest rate of official crime remains high in practice. Therate of sentence to probation and following penalty after arres is still relatively high proportion.The neutrality of arrest body can not guarantee under the operation mechanism official crimeinvestigation integration. The people’s supervisor system was originated in response to questionthe procuratorial organ handling official crime. The system of people’s supervisor has played arole for control the implementation of the procuratorial power from existing data, but relativelylimited. From the outside, the restriction of power of procuratorial investigation by court is thesanction of entity and procedural sanction of the illegal investigation activities. However, thesanction of entity is difficult to play a role in practice. Although, as promulgating of “on thehandling of exclusion of illegal evidence in criminal cases”, the norms of procedural sanctionhas perfected progressively, but the effect is not optimistic. The existing mechanism could notplay function well should be reflected further. There are the causes of rules and understandingabout the internal mechanism. The deeper reason is that the inner supervision and restrictionbelongs to self-control mechanism and the procuratorial organ tends to prosecute. From theexternal restriction mechanism, the cause may be from the norms, but more important is “theintegration of procuratorial organ and court” and the appraisal mechanism.The fifth chapter is the reformation of our country’s the supervision and restrictionmechanism of power of procuratorial investigation. Macroscopically, the reformation needs toeliminate the path dependence of supervision mechanism, and gradually strengthen the externalconstraint mechanism, because the external restriction mechanism has reflected the principle ofchecks and balances and due process relative internal supervision mechanism. However, strengthen the external restriction does not mean complete removal of internal supervisionmechanism, instead needs to further rationalize the internal supervision mechanism. The reasonlies in internal supervision and restriction mechanism may play control effect, while theexternal restriction mechanism has the function limitation. Judicial independence is the premiseof external restriction mechanism, therefore, its function depends on gradually form of thejudiciary independence. Microscopically, the reformation needs to rationalize the powerstructure of procuratorial organ. The reformation of supervision by the investigationsupervision department is necessarily limited because it belongs to self-control mechanism.Therefore the legality supervision should be done mainly by the court with the progressivelyperfection of judicial review mechanism. It is necessary to externalize, limit the supervisionscope, strength its effectiveness for the people’s supervisor system. The reformation of externalconstraint mechanism needs to perfect the judicial review of investigation power. Firstly, weshould reform the prior authorization mechanism.(1) The organ of review. Current legislationshould adopt a relatively reasonable approach, which maintenances the upper gradeprocuratorate as review organ of the mandatory investigation, and establishes the mechanismof review by court and the appellate when the one party refused to accept the decision. Butprior authorization by the court for compulsory investigative behavior is the developingdirection in the future.(2) The scope of authorization. Our country should continue toaccumulate experience and gradually expand to other mandatory investigation act. Secondly,we should take about of the subsequent review. The subsequent review should include all theinvestigation behavior. The relief mechanism of judicial review should be established.Conclusion shows the accomplished research and the basic conclusion in the dissertationas well as questions and directions which needed to be studied possibly.