Empirical Research On Prosecution Guiding Investigation Centered On Arrest Procedures

Prosecution guiding investigation constitutes an important content in the reform of prosecutorial system in China and a work mechanism and case-handling means which are gradually fumbled by prosecutorial organs in recently years in the practice process of active exploration of interposition of investigation, guiding of investigation and evidence obtainment and intensification of investigation supervision.At present, theoretical sectors mostly make research on prosecution guiding investigation, placing extra emphasis on prosecution procedures, which are held to be the reflection of prosecution functions. However, in practical work, since arrest procedures actually become the central link of the litigation, prosecution guiding investigation has obtained the most widespread application at this link, and therefore, it is definitely necessary to make deep research on prosecution guiding investigation,centered on arrest proceduresThe aim of prosecution guiding investigation is to make a thorough investigation on case facts, in which prosecutorial organs timely interpose investigation activity under the handling of criminal cases by public security organs, put forward opinions and suggestions for evidence collection, regulation, improvement and investigation and evidence obtainment and practices legal supervision on the legality of investigation activity. Prosecution guiding investigation is applied to arrest procedures.The first one is guiding investigation, that is, advance interposition, which is one mechanism that is formed at the earliest time in prosecution guiding investigation,have been explored and practiced for a relative long time and great guiding achievements have been realized; however, there still exist some problems such as heavy reliance on advance interposition by public security organs, excessive interposition range and non-regulation of interposition procedures.The second one is guiding investigation in the process of arrest examination, that is, evidence materials are required to be supplemented according to the case, when guiding investigation is characterized by high efficiency and high quality;however, guiding investigation is lack of definite legal base and links up the relationship between the prosecution and the police and in the meantime extends custody period in a disguised form.And the third one is guiding investigation subsequent to arrest procedures, including guiding investigation subsequent to arrest approved and guiding investigation subsequent to arrest unapproved, in which guiding investigation subsequent to arrest approved is further divided into guiding investigation subsequent to general arrest, reflected in evidence material opinions to be submitted, required for the trial by the court, and guiding investigation subsequent to conditional arrest, reflected in notification of the case conditional arrest upon approval and periodical understanding of the investigation;and the main means to guiding investigation subsequent to arrest unapproved are to provide outlines of supplementary investigation.Guiding investigation subsequent to arrest procedures is less carried out, resulting in bad effect and single means.The major achievements of prosecution guiding investigation lie in the promotion of case quality and litigation efficiency, reflecting joint effect of cracking down. However, the existing problems mainly include prosecution guiding investigation is carried out separately at different stages of arrest, resulting in failure to form a system;the effect of prosecution guiding investigation rests on the recognition by public security organs;and prosecution guiding investigation guides more individual cases but fails to guide less similar cases.In order to further improve the system of prosecution guiding investigation,the first one is to define guiding function of prosecutorial organs in arrest procedures and complete, definite and specific provisions shall be formulated in the law for prosecution guiding investigation; the second one is to define several cases the guiding of which need to be emphasized, including the cases with narrow range of evidence and easy lose of evidence, the cases with disputes in applicable law and evidence, the cases of new type and high frequency or the cases with strong specialty, the cases committed by Mafia-like gangs and other organized crimes as well as the cases to be recorded and investigation by public security organs subsequent to the notice of prosecutorial organs;the third one is to regulate guiding means of the cases of conditional arrest, which may not be limited in written guiding, but should arrange responsible persons to make specific guiding according to the investigation, and the guiding contents of which should be varied with the penetration of the investigation;the fourth one is to innovate on new means of guiding investigation, it is necessary to begin with the source, adopt measures to strengthen communication and exchange with investigators; the fifth one is to set up special guiding investigation organs, so as to provide realistic mechanism guarantee for the realization of prosecution guiding investigation; and the sixth one is to incorporate guiding investigation into assessment objects of public security organs and prosecutorial organs, so as to encourage the better development of the work.