Research On The Allocation Of Investigative Powers In My Country

The distribution of investigation power is the foundation and basis of establishment investigation system. Whether it is reasonable has an influence not only on the balance between public power and private rights in proceedings, but also on whether the judicial activities can operate fairly, efficiently, authoritatively and smoothly. Therefore, from multi-angle of theory and practice, intra-and extra-territorial, vertical and horizontal, the author explores and compares the settings of investigative subject, the distribution and control of investigation power. After that, the author analyzes and demonstrates the emerging issues requiring urgent solution in criminal proceedings. Lastly, some constructive reform proposals and programs are put forward.This dissertation contains six chapters as follows.Chapter 1, The relative concepts of the distribution of investigation power. Starting from a research on the concept of investigation, this chapter focuses on the investigation power and investigative subject. Firstly, from the perspective of integrated litigation, the author points out that China's investigation power belongs to the judicial power (right of action), rather than the administrative power. Secondly, from the logical relationship of the concepts, the relationship between investigative subject and investigation organs is clarified. After that, the author concludes that tthere are five investigation subject and three investigative organs in China at present and the nature of the investigation organs should not be determined by the attribute of the investigation power, but by the nature of the basic empowerment of the investigation organs which are subsidiary to state organs. Furthermore, the author argues that the public security organ, the state security organ and the smuggling investigation department of the maritime customs administration belong to administrative organ; inspection organ belongs to judicial organ; the armed forces belongs to military organ and the prison administration belongs to the judicial organs.Chapter 2, The theoretical basis of the distribution of investigation power. This chapter focuses on the theoretical framework of the distribution of investigation power which is composed of basic theory, lawsuit theory and typical theory. The basic theory includes the national power distribution theory such as state contract theory, people's sovereignty, power separation theory, legal rights theory, limited power theory, etc; the direct theory includes the criminal prosecution rights distribution theory such as statutory authority, separation of prosecution and trial, equality between prosecution and defense, participatory democracy, judicial control power distribution, etc; and the typical theory and principle include the people's democratic dictatorship regime theory, the people ' s congress system and legal supervision principle under guidance of Lenin's theory of the prosecution system.Chapter 3, The research on the distribution of investigation power of foreign countries and Hong Kong, Macao and Taiwan. From the perspective of different jurisdictions and different countries, the author compares the subject, the purview and the control of investigation power. This approach can not only broaden the research perspective, but also provide rich theoretical and practical experience for the rational distribution of China's investigation power.Chapter 4, The setting of China's investigation subject. Base on the exploration of China's investigation subject setting, the author argues that China's investigation subject setting should follow five main principles: the investigation subject should be established by the highest authority; the characters of the power of investigation subject should be coordinated; the investigation subject should be established according to real situation;the investigation activities should be convenient; the investigation resources should be used efficiently. At the same time, this chapter reflects on the unreasonable phenomenon existing in the qualifications of investigation subject and the investigation power granting procedures. After that, the granting procedure of the prison investigation power, the rightness of granting the investigation power for the inspection organ, the expansion of "public security industry" in practice, and the overuse of investigation power among the public security organs are analyzed one by one. After that, the author proposes that the private detective industry which emerges spontaneously in our society should be incorporated into the law track as soon as possible. Furthermore, a comprehensive legal regulation should be applied to the private detective industry in the organization management, behavior patterns, scope of accepting cases, legal liability, etc.Chapter 5, The division of China's investigation purview. This chapter focuses on three issues: firstly, outlining the basic principle framework of China's investigation authority granting, which includes the jurisdiction of criminal cases, the application scope of the mandatory investigation power and the division jurisdiction of the investigation power; secondly, proposing five principles of China's investigation authority division: the power and responsibilities should be matched; the power and the rights should be balanced; the decentralization and focus of the power should be combined; the intensity of power should be in proportion to the complexity of the procedure;the maximization of the effectiveness of the power; thirdly, analyzing the main problems existing in the practice of China's division of investigation power and proposing legislative amendments.Chapter 6, The control mechanism of China's investigation power. This chapter focuses on how to improve the control system of China's investigation power surrounding the litigation framework. Firstly, the author summarizes the three main control modes of China's investigation power: investigation subjects'internal supervision, the People Procuratorate's judicial control on the investigation activities of, as well as the People Court's post-control of the investigation activities. Secondly, the author points out the problems are existing in the current control mode, which cannot play an effective role of supervision and restriction as a result of heavy administration color and weak monitoring mechanisms. Finally, a sound proposal to strengthen the supervision of the inspection organ by both themselves and the third party is put forward. Besides, the author advises to abolish the investigation function of detention places, and to establish detention review system.