| As an important part of Chinese criminal procedure,supplementary investigation is of great significance to the smooth progress of Chinese criminal procedure,whether in the legislative level or in the judicial practice level.However,at present,Chinese legislative provisions on supplementary investigation are unsatisfactory,or even inadequate,and there are also many problems in the process of judicial practice.The problems in judicial practice are caused by the imperfect legislative provisions on the one hand,and the problems in judicial practice itself on the other hand.Therefore,the author tries to supplementary investigation of two aspects of legislation and judicial practice of our country of supplementary investigation study,combined with the Anglo-American law system and continental law system and at the same time with our country existing legal source of Japan and Russia as a representative of the country’s beneficial experience of supplementary investigation system,in order to can carry on the corresponding to the our country the supplementary investigation of perfect,promote the development of the criminal lawsuit of our country and the construction of the country under the rule of law.In addition to the introduction,research conclusions and references,the text is divided into six chapters.The first chapter summarizes the supplementary investigation.A good workman must sharpen his tools before he does his work well.To study supplementary investigation,we must first master the basic knowledge of supplementary investigation.This includes the concept and characteristics of supplementary investigation,the classification,purpose and task of supplementary investigation,the historical context of supplementary investigation,the legal basis and practical needs of supplementary investigation,etc.In the part of the concept and characteristics of supplementary investigation,this paper sorts out the five typical definitions of supplementary investigation in the current academic circle,and points out the irregularities of these five definitions,so as to define supplementary investigation in a relatively scientific way.On the basis of the definition,from the internal level clear supplementary investigation has decided to subject specificity,selectivity,applicable statutory program executive main body and tasks clarity,certainty the connotation of the five start conditions,from the external level clear supplementary investigation has remedial program in reverse,investigation,checking,later stage specificity in the four big characteristics.At the same time,the supplementary investigation is compared with the original investigation and the reinvestigation of similar concepts.In the classification part of supplementary investigation,according to the executive subject of supplementary investigation,the cause of initiation,the stage of litigation and the standards stipulated by law,supplementary investigation will be classified accordingly,so as to further clearly understand the scope of supplementary investigation.In terms of the purpose and task of supplementary investigation,it shall be determined separately according to the different litigation stages of supplementary investigation.In the part of the historical context of supplementary investigation,the history of supplementary investigation in China is divided into the embryonic stage,the establishment stage and the development stage from the perspective of the applicable scope of supplementary investigation,so as to clarify the development history of supplementary investigation in China.In terms of the legal basis and practical needs of supplementary investigation,it is divided into three levels.The first level is the legal basis of supplementary investigation,which explains the legal basis of supplementary investigation in China and discusses the foundation of supplementary investigation in China from the theoretical level.The second level is the practical need of supplementary investigation.Starting from the practical need of judicial practice,this paper discusses the necessity of the emergence,existence and development of supplementary investigation.The third level is the debate on the existence and abolition of supplementary investigation,which mainly discusses the scholars’ negation of the corresponding viewpoints of supplementary investigation,and then puts forward the author’s viewpoints to further affirm the existence value of supplementary investigation.The second chapter analyzes the legal provisions and problems of supplementary investigation in China.Supplementary investigation as an important part of our country’s criminal procedure,although belonging to the regular program,but now that our country legislation has carries on the corresponding rules,then you must need to in-depth research within the scope of legal norms,normative research away from the law,supplementary investigation study is incomplete.Combined with the provisions of Chinese existing criminal legal norms on supplementary investigation,this chapter is divided into three parts: the legal provisions and problems of returning supplementary investigation,the legal provisions and problems of self-supplementary investigation,and the legal provisions and problems of supplementary investigation by investigation organs.Under these three parts,further research is carried out according to the different stages of supplementary investigation.In terms of the legal provisions on return of supplementary investigation and its problems,first of all,according to the existing three normative legal documents on return of supplementary investigation,the main contents of their respective provisions on return of supplementary investigation are summarized respectively.Secondly,according to the provisions of three normative legal documents on the return of supplementary investigation in the stage of examination,approval and arrest,examination and prosecution and court hearing,the operating framework of the return of supplementary investigation in accordance with existing laws and regulations is clarified.Finally,under the framework of the operation of return supplementary investigation,the possible legislative loopholes and in appropriacies of return supplementary investigation are found in three stages.In terms of the legal provisions and problems of self-supplementary investigation,first of all,according to the provisions of the four existing normative legal documents on self-supplementary investigation,the main contents of their respective provisions on self-supplementary investigation are summarized respectively.Secondly,according to the provisions of the four normative legal documents on self-supplementary investigation in the examination and prosecution stage and the court trial stage,the operation structure of self-supplementary investigation under the existing provisions of the law is clarified.Finally,under the structure of self-supplementary investigation operation in the stage of examination and prosecution and trial,the possible legislative loopholes or even contradictions are searched separately.In terms of the legal provisions and problems of supplementary investigation by the investigation organs,as supplementary investigation by the investigation organs exists in the stages of examination,approval,arrest,examination and prosecution and trial,but the law does not make too big a distinction,so the supplementary investigation by the investigation organs under these three stages is integrated to discuss.The third chapter reflects on the existing problems and causes in the actual operation of supplementary investigation in China.Supplementary investigation should be studied not only at the level of legal norms,but also at the level of judicial practice.Following the style of chapter two,this chapter discusses the problems and causes in the actual operation of supplementary investigation,the problems and causes in the actual operation of supplementary investigation by the investigation organ,and the order of the problems and causes in the actual operation of supplementary investigation by the investigation organ.In return the supplementary investigation reality problem and cause in operation of the part,returned to the problems in the operation of the supplementary investigation in reality apply risk rate is higher,there is alienation,supplementary investigation outline rough,lack of problem such as the criminal suspect and the victim’s right protection,the main causes are the understanding of the imperfect legislation,attaching too much importance to the entity justice,returned to the supplementary investigation is widely used,with less than the prosecutor and police,and the influence of "not to prosecute" index,etc.In the supplementary investigation on its own reality problem and cause in operation of the parts,but actually the problems existing in the operation is relatively small,mostly used rarely and "borrow time" problem,its causes are sufficient,respectively is imperfect legislation,biased,lack of case handling concept detection ability inadequacy,returned to the supplementary investigation has more advantages,etc.In the investigation organ for supplementary investigation reality problem and cause part of the operation,in operation of the investigation organ for supplementary investigation reality problems mainly supplementary investigation quality is not high,there is phenomenon of "dismantling time",severe detention,supplementary investigation after the end of improper handling,and so on.The main causes are investigation organ antipathy supplementary investigation,the investigators investigation ability is limited,the investigation organ of power,supplementary investigation cases,time is limited,the lack of effective communication with the people’s procuratorate,the people’s procuratorate is the lack of the supervision of investigation organ,etc.Problems and their causes in the actual operation of supplementary investigation by the investigation organ,problems in the actual operation of supplementary investigation by the investigation organ include low quality of supplementary investigation,the phenomenon of "borrowing time",serious detention of criminal suspects for longer periods,improper handling after the completion of supplementary investigation,etc.The causes are mainly manifested in the aversion of the investigation organs to supplementary investigation,the limited ability of the investigators,the limited power of the investigation organs to handle cases,the limited time of supplementary investigation,the lack of communication with the people’s procuratorates,the lack of supervision of the investigation organs by the people’s procuratorates and other aspects.Chapter four investigates the supplementary investigation system in foreign countries."A person who does not understand the legal system of another country must have a partial knowledge of the legal system of his own country." To study supplementary investigation,we should not only understand the legislative provisions and judicial practice of supplementary investigation in China,but also investigate the supplementary investigation system in foreign countries,so as to know ourselves and the enemy better and promote the perfection of supplementary investigation in China.The investigation on foreign supplementary investigation systems can be divided into three levels: the investigation on the supplementary investigation systems of countries of common law system,the investigation on the supplementary investigation systems of countries of civil law system and the investigation on the supplementary investigation systems of Japan and Russia.To investigate the supplementary investigation system of common law countries,mainly take The United Kingdom and the United States as examples.As the origin of the common law system,Britain implements the mode of "separation of police and prosecutors".Prosecutors have no right of investigation,but only the police have the right of investigation(specific institutions such as the customs department also have the right of investigation).Therefore,in case of the need for supplementary investigation,only the police have the right of supplementary investigation.During the examination of police files and the appearance of a complaint in court,the prosecutor may make recommendations to the police agency for additional investigation,but it is up to the police to decide whether additional investigation is necessary.Britain also has a royal commission on criminal Justice,which appoints investigative officers to carry out supplementary investigations on the basis of an innocent person’s application for conviction.As the successor of the British law,the United States is also an important contributor to the common law system of the UK and The United States.Generally,prosecutors do not have the right of investigation,nor the right of supplementary investigation.When supplementary investigation is needed,they can make suggestions to the police for supplementary investigation,which is decided by the police.In the pre-trial stage,after the pre-trial judge makes the decision not to prosecute,the prosecutor may conduct supplementary investigation in order to reprosecute.In short,the supplementary investigation system in common law countries can be summarized as one executive subject,two decision subjects,three application stages and the procedure of correcting wrongful convictions.To investigate the supplementary investigation system of civil law countries,mainly take France and Germany as examples.Supplementary investigation in France mainly exists in the preliminary trial procedure.In the preliminary trial procedure,the prosecutor can issue supplementary investigation opinions to the judge if there are new criminal facts.An investigating judge may also decide on his own initiative to conduct additional investigations if he finds that evidence in a case transferred by the prosecutor is insufficient.In the secondary pre-trial procedure,not only the pre-trial court may take the initiative to conduct supplementary investigation,but also the prosecution and defense parties may apply for supplementary investigation.Germany implements the "integration of prosecutors and police".In the stage of examination and prosecution,prosecutors can carry out supplementary investigation by themselves or request police to carry out supplementary investigation.In the preparatory procedure of trial,the defendant can apply for and the judge can order to start supplementary investigation.In addition,the German judge may recommend to the prosecutor additional evidential material in the judicial review of the application of certain mandatory measures.Therefore,the supplementary investigation system in the civil law system countries has obvious characteristics of multiple filtering function,being applicable to multiple stages,non-uniqueness of the subject of decision,and the main subject of execution being the inspector and police.The supplementary investigation system in Japan only exists at the stage of examination and prosecution,that is,when the criminal case materials handed over by the judicial police staff after the prosecutor’s examination cannot meet the requirements of prosecution,the supplementary investigation system will be launched.At this time,the public procurator is the decision subject of supplementary investigation,and may make supplementary investigation by himself or request the judicial police to do so.The supplementary investigation system in Russia is relatively comprehensive.The period of supplementary investigation can be specified within one month,and it can be extended conditionally.In addition to the chief procurator,other participants in the proceedings may also apply for supplementary investigation.Give other litigant participants the right to know the supplementary investigation.The fifth chapter puts forward some suggestions to improve the problems of supplementary investigation in China from the macro level.On the basis of a comprehensive grasp of the basic knowledge of supplementary investigation,guided by the problems existing in legislation and judicial practice,and combined with the beneficial experience of the supplementary investigation system abroad,this paper puts forward that the path to improve the supplementary investigation in China is the top priority of this paper.As far as this paper is concerned,macroscopic improvement suggestions are applicable to supplementary investigation by returning,supplementary investigation by oneself and supplementary investigation by investigation organs.One is to adjust the applicable case types of supplementary investigation.The omission crime and omission accomplice applicable types of supplementary investigation are eliminated,and the applicable types of supplementary investigation are limited to some cases with unclear facts and insufficient evidence.Secondly,it makes clear the applicable boundary between supplementary investigation by oneself and returning supplementary investigation.The boundary between supplementary investigation by oneself and returning supplementary investigation should be made clear so as to avoid the ambiguity of application of the two from the root.The second is to reshape the time regulation of supplementary investigation.In terms of supplementary investigation time,the existing problems of supplementary investigation time can be solved by clarifying the starting and ending time of supplementary investigation,stipulating the supplementary investigation time flexibly and listing the supplementary investigation time independently.The third is to determine the number of supplementary investigations.In terms of the number of supplementary investigation,the number of supplementary investigation should be limited when examining and approving arrest,the total number of supplementary investigation should not exceed two times when examining and prosecuting,and the trial stage should be carefully selected.Fourthly,it is the starting subject of extended supplementary investigation.At the stage of investigation,prosecution and trial,criminal suspects and defendants are endowed with the right to start supplementary investigation.Fifth,to construct a reasonable evaluation mechanism.Unreasonable evaluation systems such as "non-prosecution rate" should be abolished,and reasonable evaluation indexes such as "case-case ratio" should be established and promoted.The sixth chapter puts forward the corresponding countermeasures to improve the problems of supplementary investigation in China from the micro level.In addition to the improvement of supplementary investigation in China from the macro level mentioned above,supplementary investigation in China also needs to be improved from the micro level.It can be divided into the micro optimization of returning supplementary investigation,the micro optimization of self-supplementary investigation and the micro optimization of supplementary investigation by investigation agencies.First of all,combined with the problems existing in the return supplementary investigation,the author puts forward the corresponding countermeasures to improve it.The main body returning the supplementary power of investigation shall be generally held by the chief procurator and the procuratorial committee in major cases;The condition of returning supplementary investigation,in the final analysis,lies in the lack of evidence,as for the specific lack of evidence should be judged according to the specific circumstances of the case;Strengthen the procuratorial personnel’s awareness of the rule of law,make them strictly abide by the provisions of the law,change the outdated idea of handling cases,strengthen the training and education for them;In returning supplementary investigation,the procuratorate shall strengthen cooperation with the investigation organ;The supervision of the supplementary power of investigation should be comprehensively promoted from the internal supervision of the procuratorate,the supervision of the criminal suspect,the supervision of the investigation organ,the supervision of the supervisory organ and the public.Secondly,combined with the problems existing in self-supplementary investigation,it puts forward targeted solutions.To determine the subject of supplementary investigation by itself and to make clear the subject of decision and the subject of execution;Clarifying the conditions for self-supplemental investigation so that self-supplemental investigation can be justified and applied in judicial practice;Change the traditional thought of case handling,reasonable,proper and orderly application of self supplementary investigation;To equip necessary investigators,enhance the ability of procurators,etc.,to improve the supporting system of self-complementing investigation.Finally,in view of the problems existing in supplementary investigation,the corresponding countermeasures are put forward.This paper advances the perfection of supplementary investigation by investigation organs from the following aspects: scientifically defining the main body of supplementary investigation by investigation organs,enhancing the ability of investigators to handle cases,strengthening the communication with procuratorial organs,and conducting effective supervision over supplementary investigation by investigation organs. |
