Research On The Connection Between The ’Two Laws’ Of Duty Crime Cases

With the establishment of the linkage mechanism between the Supervision Law and the Criminal Procedure Law(hereinafter referred to as the linkage between the two Laws),the supervisory organs carry out investigations of duty crimes as non-criminal litigation subjects,thus removing the legal barriers to intervening in criminal proceedings.However,at present,there are still institutional and institutional obstacles in the connection of the ’two laws’ of duty crime cases in the connection of the application of lien and compulsory measures,the identification and disposal of the property involved,the cooperation between supervisory organs and judicial organs,and the protection of the rights of the person under investigation.As a result,the basic principles of criminal procedure such as the unity of criminal procedure,the final judicial judgment and the protection of rights have not been well followed.The emergence of the above problems brings unprecedented challenges to the reform of the’judication-centered’ litigation system which aims at realizing the return of the basic principles of criminal procedure.Therefore,it is of theoretical value and practical significance to study the connection of ’two laws’ in duty crime cases under the background of trial as the center.In this paper,the ’connection’ of the connection of the ’two laws’ is no longer a narrow procedure conversion mechanism,but from the perspective of trial as the center,how to follow the same procedure logic between supervision procedures and criminal proceedings,and how to coordinate and unify the system with criminal proceedings.This is not only related to how to implement the goal of judicial reform under the new supervision system,but also related to how to absorb the legal experience of criminal procedure law in procedural justice and human rights protection.In this paper,a combination of normative analysis and empirical analysis is adopted to make an empirical investigation on the connection of ’two laws’ in duty crime cases,analyze the reasons from the level of system,system and mechanism factors,so as to profoundly grasp the crux of the problem and put forward suggestions for further reform.The research on the connection of ’two laws’ starts from the basic theory.First,the theory of the unity of the rule of law in criminal procedure is the legal basis of linking ’two laws’ of duty crime cases.The connection of ’two laws’ should maintain the unity of the criminal procedure and realize the dual pursuit of the rule of law to protect human rights and fight crimes.Secondly,the connection of ’two laws’ should follow the theory of rights protection.The application of compulsory measures of personal property should follow the principle of legal procedure,proportionality and judicial review.The protection of procedural rights should reflect the concept of power restriction and right relief.Thirdly,the ’two laws’ should follow the effectiveness theory of organizational behavior.The judicial organ should effectively cooperate with the supervisory organ in the conversion of the supervisory procedure to the criminal procedure;In the process of criminal procedure,supervisory organs should carry out effective judicial cooperation to promote the effectiveness of criminal procedure operation.Fourth,the connection between the ’two laws’ should follow the theory of judicial final judgment.In the investigation of duty crimes,the principle of procedural justification should be carried out,subject to the principle of judicial finality and independence,and the judicial organ should be guaranteed to have the final decision on the entity and procedure of the case,without the restriction and interference of extra-case factors.Through the empirical investigation of the ’two laws’ cohesion,it is found that there are five problems in the current ’two laws’ cohesion mechanism in practice:First,the problem of the cohesion between lien and compulsory measures.In the connection of compulsory measures in duty crimes cases,the application of lien has a decisive impact on the application of arrest.The low standard application of lien measures directly leads to the unification of arrest standards and lien standards by procuratorial organs,and the procuratorial organs’ right of decision to examine compulsory measures in duty crimes cases is ’virtually useless’,which seriously reduces their legal supervision status.The unity of the rule of law in criminal procedure is also facing severe challenges.Second,the problem of improper identification and disposal of property involved.In practice,problems such as leakage of the property involved in the case,arbitrarily expanding the scope of the property involved and not transferring the property involved are relatively common.Improper disposal of the property involved in the case leads to the ineffective connection of the litigation procedure of the property involved,which seriously infringes on the property rights of the accused.Third,the excessive cooperation and insufficient restriction of the procuratorial organs to the supervisory organs.Early intervention has become the norm,and decisions on non-prosecution,withdrawal of investigation and exclusion are relatively negative.Although the efficiency is improved,the substantive correction and error correction are very few,which weakens the independent function of the review and prosecution procedure in the review and control,supervision and restriction.Fourth,the realization of procedural rights is difficult.There is a complete lack of lawyers in the investigation procedure of duty crimes in the research area.Although some families of the investigated persons have hired lawyers for legal advice,they are unable to meet or consult with the detained persons as defenders or offer defense opinions to supervisory organs.At the same time,there are also problems such as the normalization of written explanations and the difficulty of investigators appearing in court.As a result,in the trial stage,the rate of sentencing defense is much higher than that of procedural defense and innocence defense,and procedural defense is more difficult to achieve ideal results.Fifth,the compliance of the judgment result to the investigation conclusion.Compared with the overall judgment result of criminal cases,the acquittal rate of duty crime cases is very low,and the change of the charge or the change of the amount of recognition rarely happens.There are complex systematic influencing factors,including institutional factors,institutional factors and mechanism factors,which play their respective roles and penetrate into each other and become the driving force for the problem.First of all,the system factors determine the influence of the special status of supervisory organs.The dual positioning of the political organ and the investigation subject affects the legitimacy of the pre-litigation procedure,resulting in the investigation organ’s litigation subject identity and the judicial attribute of the investigation power are ’shielded’,the external participation and supervision of the investigation are ’excluded’,and the independent status and program design of the investigation are ’replaced’.The special positioning of supervisory organs leads to the imbalance of power structure with judicial organs,the absence of legal supervision of procuratorial organs and the lack of restriction on the right to review and prosecute,the weakening of judicial authority and the emptiness of trial,the inability to restrict the investigation of duty crimes,affecting the effect of independent case handling.Secondly,the system factor determines the logical contradiction between the duty crime investigation system and the criminal procedure system.The investigation system of duty crime is more administrative or non-litigious.The non-litigation nature of personal and property intervention measures leads to highly closed lien measures and lack of internal control,highly administrative property investigation measures and lack of adequate supervision,relief and sanctions;The non-litigation nature of procedural rights protection leads to the lack of the right of the person under investigation to obtain the lawyer’s help and the lack of procedural rights protection of the person under investigation.Finally,the mechanism factors lead to the litigation compatibility of duty crime investigation mechanism is weak.The lack of criminal filing and supporting supervision mechanism makes the filing activities of supervisory organs become a closed process,and procuratorial organs cannot carry out legal supervision.In addition to detention,personal intervention measures lack a gradient of compulsory measures supporting mechanism,leading to the occurrence of unnecessary detention;The closed provisions on audio and video recording are not compatible with the exclusion rules of illegal evidence,and the provisions on physical examination and interrogation in lien are not compatible with the provisions on pre-trial detention,which makes the problem of difficult to prove and exclusion of illegal evidence more complicated.Many problems in the connection of ’two laws’ reflect the ideological bias and structural defects of the investigation system,system and mechanism of duty crimes.The key to solving the connection problem of ’two laws’ is not to transform the case transfer procedure and transfer mechanism only from the technical link,but to start from the basic procedural principle,balance the power relationship between supervision,prosecution and trial with trial as the center,and standardize the duty crime investigation procedure with procedural rule of law as the basic connotation.Therefore,the author puts forward the short-term and long-term reform idea of reconstructing the connection mechanism of ’two laws’ with trial as the center.The recent reform plan aims to make the connection between the two laws more smooth by moderately reforming the power relationship between supervision and prosecution,further standardizing the investigation procedures for duty crimes,and improving the relevant working mechanism,while the current supervision system and the criminal litigation system remain basically unchanged.The long-term reform plan calls for reshaping supervision,investigation,prosecution and trial procedures with higher legal standards in accordance with the central government’s latest decisions and arrangements,and ultimately forming a logical and efficient criminal procedure.In the recent reform plan,first of all,from the institutional level,the appropriate balance between the supervisory and procuratorial power structure,including clarifying the investigative attributes of the duty crime investigation power;We will strengthen the legal supervision of the procuratorial organs over the results of supervisory investigations.Secondly,at the system level,the investigation procedures of duty crimes should be properly regulated according to the criminal procedure standards,including improving the supervision evidence rules system centered on the trial.Further standardize the lien system with the arrest procedure as reference;We will explore the establishment of a procedure system for duty lawyers to be conditionally involved in the investigation of duty crimes.Finally,at the mechanism level,we should take legitimacy as the goal to improve the relevant work mechanism,including the establishment of institutionalized internal control process of duty crime cases.Improve the evidence linkage mechanism.In the long-term reform plan,firstly,the supervision,procuratorial and judicial power structure should be rebuilt from the institutional level with the trial as the center,including the improvement of the office system and the construction of independent duty crime investigation institutions and procedures;Reconstruct the relationship between supervision and inspection to establish the legal supervision right of procuratorial organs to the process of supervision and investigation;The relationship between supervision and law should be restructured,and the scope of supervision over judicial organs by disciplinary and supervisory organs should be appropriately limited.Secondly,at the system level,the investigation procedure of duty crime is legalized with the purpose of procedural rule of law,including the construction of a complete and reasonable structure of compulsory measures system;Further promote the legalization of lien measures and compulsory investigation measures;We will establish a system of full involvement of lawyers and full coverage of legal aid in the investigation of duty crimes.Finally,at the mechanism level,we should improve the matching mechanism of the connection between duty crime investigation and criminal proceedings,including the establishment of the filing mechanism and the construction of the judicial responsibility system of duty crime cases.