Study On Pre-investigation Procedure

It’s forbidden in the modern legal nations to initiate criminal investigations without proper reasons,only when the suspects have been proved to be guilty,the investigation can be started.In theory,there should be an investigation for confirmation of the possibility of a crime may have occurred.In China,due to the existence of Criminal Case Filing Procedure,to determine whether to reach the conditions of filing a case,investigation before the start-up of crime investigation procedure is a universal existence.The foreign scholars pay less attention to the process of the investigation,and classify it as administrative investigation to eliminate the danger carried out by the administrative police.For example,in German police practice and police law circles,the investigation to determine whether or not to have "the initial suspicion"(einfacher Anfangsverdacht-dacht)to start the criminal investigation procedure is called "pre investigation"(Vorfeldermittlungen).But because there is no provision in the criminal procedure law,the nature of the investigation of the criminal procedure in Germany is controversial,and generally regarded as the work of the police’s exclusion of danger,which belongs to the category of the exercise of the police power of the administrative police.For the investigation before initiation of criminal investigation carried out by the investigation organ,domestic scholars mainly study the "preliminary investigation" put forward by the investigation practice.But there has been great difference in the academic field on the nature and task of the initial investigation,the relationship between it and investigation,and the problems in the use of measures.Because of the traditional theory of criminal procedure,the crime investigation is a passive response to the crime that has occurred,the investigation carried out before the start-up of crime investigation procedure is aimed at the verification of the material of accepting cases.The process of this verification occurred in a short period of time rarely causes the attention of the academic circles.However,with the development of science and technology,the intensification of social contradictions,many areas of criminal activities are becoming more and more intelligent,subtle and malignant in harmful results.At the same time,with the development of science and technology,especially the development of information technology,the main means of investigation and case solving,and the cognitive methods of Investigative activities is undergoing tremendous changes.In many investigation activities,the cognitive approach has been developed from the reductive inference to the synchronization and even pre-cognition.The content of investigation work is not only a passive response to the crime having been found,but actively to find clues to the crime,to extend the field of crime prevention.Thus,a kind of investigation mode which is called"pro-active investigation" is produced,and it is widely spread in practice.In pro-active investigation,the investigation organs combine the crime prevention and criminal investigation which belong to two works in different areas.They found the clue of the crime in the crime prevention,and actively check the clues,quickly start the investigation,in order to effectively curb crime,protect society from crime.In theory,the investigation of the information of the society or the specific area,the specific population which may be related to the crime belongs to administrative investigation and should be regulated by administrative law or administrative procedure law.Investigation after the investigation procedure started should be regulated by the criminal procedure law.However,between the two,there’s a blank area of the current law research,that is,what is the nature of the verification work of the specific crime clues and the procedure of the investigation process.That further brings about the lack of legal norms and the lack of legal regulations in the investigation before the criminal investigation started.Especially in the current litigation system in our country,the initiation of criminal investigation procedure adopt procedural type.To determine whether or not to have the filing conditions,the investigation organ often need to investigate before filing a case.This investigation may aim at the clue of crime from accepting case,such as the materials provided by a reporter,or the clues found by the investigation organs.The process is often carried out unilaterally and secretly.It is easy to lose control and cause the Infringements of civil rights.But if it is completely prohibited,it is not in accordance with the practice of the investigation,and it is not conducive to the realization of the function of criminal investigation under the new situation.Therefore,theoretical research should be based on the investigation practice,define the nature of this investigation,and put forward the legal regulation method.On the modern investigation practice and investigation power theory analysis,this paper argues that,before the initiation of criminal investigation procedure,to decide whether to start a criminal investigation,investigation organs just use criminal investigation power,as a criminal prosecution power,to investigate a specific person or event that may be involved in a crime decide whether to start a criminal investigation This investigation can be named as "pre-investigation",the process of this investigation is a part of the criminal procedure,which can be called "pre-investigation procedure".Putting it as a research starting point of the thesis,we can reach the following conclusions:First,there are two basic connotations of pre-investigation procedure.It is not only the part of the criminal procedure,but also the process of the application of the right of criminal investigation.Through the analysis of the purpose of criminal procedure and the application of the right of investigation,we can set the purpose of pre-investigation procedure as starting the criminal prosecution and protecting human rights through the procedure.Second,because of the character of free forming and unilateral structure,Initiation and termination are two key steps in the design of pre-investigation procedure.Among them,the condition of initiation,the situation of statutory starting,the way and standard of termination are the key points of the research.Third,being aimed at pre-investigation behavior,the construction of preinvestigation procedure can create a separate regulation mode,and do not have to apply the rules to regulate the investigation behavior.The center of regulation should shift from the traditional forced disciplinary actions to the right interventions.Fourth,in practice,several kinds of investigation should be regulated by preinvestigation procedure,including the investigation to confirm whether there existed a suspected criminal case in the administrative law enforcement,further interrogation and inspection in the police law,personal information processing before the start of criminal investigation.To study the pre-investigation procedure,on the one hand,following the general idea of program research,this paper takes the definition of the concept as a starting point of this research,analyses the reasons of construction of pre-investigation procedure from two aspects of the practice and the theory,analyses how to construct the pre-investigation procedure from the aspects of objective setting,process stream designs and the behavior regulation.On the other hand,the legal regulation of the pre-investigation is the basic clue of this paper,the construction of pre-investigation procedure is the way of this regulation,and it is also a response to the practical problems.