The Research On Investigation General Provision In Chinese Legal Texts

As the other side of the clarification,the intrinsic unintelligibility of language has aggravated the general expression of legal terms.Even the contextualists have to admit that the contextualization approach is only to promote the relativeness of semantics.In the constant evolution of history,the legal language of the countries in the world shows significant differences,and at the same time,carry the dream of rule of law with its own characteristics.However,the localization trend of legislation does not mean that it has already removed the commonality of language.On the contrary,a large number of general terms that exist objectively provide a reasonable evidence for the strong-association among the major legal language carriers.The general provision is an effective technique for legislators to prevent legal rigidity and lag.Especially in the current era of big data,the ever-changing social environment provides a fertile reality-soil for general provisions,if this matching relationship is reflected in the field of investigation law,that is the increasingly complex crime situation to make general provision on investigation be necessary for the world.Throughout the legal texts such as criminal procedure law and people’s police law,it is not difficult to find that the general provisions on investigation are universal.They are both positive reflection to the dynamic scalability of the investigation measures and the development of the era on the legal language level,and also an intentional balance between the principle of legal reservation and the principle of freedom.As far as the practical necessity of the investigation system is concerned,the general provision on investigation is undoubtedly the legislative support for the flexibility of the investigation measures.However,in recent years,due to the irregularity of legislative language,the scope of application of some general provisions on investigation has been over-expanded,and gradually formed a pocketing tendency and has been questioned by the academic circles.At the same time,due to formal rationality of defects,some general provisions fall into the vacant situation,so that dilute the effectiveness of these provisions.Two extreme cases reflect the applicable dilemma of general provision on investigation.Therefore,under the premise of following the legislative intent,how to carry out internal improvement and strengthen external legal control has become an important task nowadays.Through combining the definition logic behind general provision on investigation to define its concept,characteristics and nature,this article begins with the legislative blank,and finds out the status of general provision in the current legal system.On the perspective of legallinguistics,the comparative analysis of the general provision inside and outside the domain shows that the application dilemma is not entirely due to the irrationality of the internal elements of the provisions,and some of the problems stem from the external applicable rules system.In order to cope with the increasingly complex crime situation in China,although retaining the general provision on investigation is a necessary mean for the state’s flexible governance,in the era of seeking the organic coordination of authorization and control,it should still be based on the localization of the applicable rules system and legislative standardization to solve the application of general provision on investigation,in order to achieve the dynamic balance of such provisions on criminal investigation and protection of rights.In addition to the introduction and the remainder,the full text is divided into the following six chapters:The first chapter is an overview of general provision on investigation.Through the analysis of the general clauses and generalization methods in the legal texts of our country,combing with the expressions of the general terms in the legal linguistics world,the author defines the basic concepts of general provision investigation,and then explores the characteristics and nature of such clauses.On the basis of the theoretical connotation,on the perspective of linguistics,general provision on investigation is divided into a brief general clause and an overview general clause,in order to research the different expressions and construction cores of the two types of generalization methods,and then consider related concept of the criminal law theory and general clause on investigation,especially in horizontal comparison with the ambiguity of legal language,in order to further clarify the legislative nature of the investigation summary clause.The second chapter is on the perspective of legislative blanks to expounds the legislative mechanism of general provision on investigation.Leaving white was originally a special technique for art design,which refers to the blank that is intentionally left for the overall layout coordination and aesthetics.Throughout China’s various departmental laws,it can be found that the phenomenon of legislative blanking is widespread.In the field of investigation law,the direct manifestation of the white space technology is general provision on investigation scattered in different legal texts.This chapter first analyzes the kernel of legislative blanks,and then summarizes the reasons for the blankness of general provisions on investigation through theoretical and practical considerations,and refines the blanks of such clauses into investigation measures,investigation situations and investigation strategies.Thecontent further proves that the applicable dilemma of general provision on investigation is not a technical obstacle,but rather the non-standardization of legislation.The third chapter mainly takes the comparative law analysis as the perspective.It not only traces the history development of general provision on investigation in the legal text of our country,but also examines the overall development of such clauses outside the domain.This chapter begins with the guidance core of Chinese legal language,and analyzes the historical context of China’s investigation clauses from generalization to precision,and then,sorts out general provision in the major countries of the two major legal systems.Through the comparison of the status of legislation inside and outside the domain,the hierarchical design of the investigation clause has gradually become the mainstream of the present.Under this fine division of labor mode,the reservation of general provision in China not only reflects the vertical inheritance of the legislation,but also reflects the historical inevitability of the existence of these clauses,and more importantly,the concise and reference to the beneficial experience of the extraterritoriality helps to solve the applicable problems caused by the general provisions on investigation.The fourth chapter aims to construct a localized application rule system for general provision on investigation.This is the focus of this paper.Under the wave of stratification of investigative provisions,the generalization of investigative power has become an authorization method that legislators can’t abandon.However,the legal norms are not the same as the legal facts.The existence of the general clauses on investigation does not bring good practice.It is necessary to pull it back to the track of the facts of law by applying the rules system.The first section of this chapter,from the perspective of legal linguistics,analyzes the linguistic rules applicable to general provision on investigation,and explains the general language tolerance rules,the associated language supplement rules and the core lexical constraint rules.The second section takes the principle of legal reservation as the logical starting point,and examines the application of general provision on investigation through the three categories of constitutional basic rights,special criminal law and specific authorization provisions.The third section focuses on the construction of procedural rules,mainly including the two major rules of writ review and illegal evidence exclusion.The fifth chapter seeks to eliminate the pocketing phenomenon of the current general terms on investigation.The application of the general provision oninvestigation is not only manifested by the lack of the rule system,but also the application of expansion caused by the lack of legislation.Therefore,through the analysis of the related cases in the investigation practice,the three specific manifestations of the pocketing phenomenon are ascertained,that is the definition of the prohibition of the prohibition,the improper expansion of the object and scope of the application,and the over-expansion of the emergency investigation power.In order to solve the dilemma of this kind of application,the author points out the correction path on the basis of rethinking the reasons for its formation.In addition,this chapter combines legal linguistics to examine the improved methods,which not only consolidates the theoretical basis for investigative practice,but also prevents the above countermeasures from deviating from the preset track.The core content of the sixth chapter is to apply the dilemma to the current vacancy of the general provision on investigation,propose solutions,and introduce linguistics subject knowledge to test.Due to the flaws in the rationality of the partial investigation clauses in China,this kind of clauses are often used in investigation practice,and gradually become vacant phenomenon,and even once misunderstood as symbolic legislation,it is necessary to adjust its functional allocation,and then moderately expand its range of radiation to regulate the formal rationality of this part of the article.In addition,the specific measures proposed in this chapter still need to be placed under the multidimensional examination of systemic functional linguistics,so that to ensure that the repair method can effectively reduce the idle rate of such clauses,and finally realize a system of ideal investigation clauses combining soft law and hard law.