On The Startup Procedure Of Investigation

As the starting point of criminal prosecution, the startup procedure is of great significance in the criminal procedures. Theoretically, the startup procedures of countries in the world are divided into two types, i.e. procedural startup model and random startup model. In view of the initiative and flexible characters of random startup model, which may rapidly initiate the investigation and promptly punish the criminals, most of the countries have adopted such model. However, under the random startup model, the privilege of investigation may not be restrained by such kind of investigation model itself. For those countries in which a complete system judicial review has not been built up, the procedural startup model is more desirable option. The so-called"case filing"procedure under the PRC law obviously falls into such kind of procedural startup procedure, which is still under perfection due to the unbalance between the startup procedure and the restriction on privilege of investigation.This dissertation aims to make some suggestions for the perfection of the startup procedure of China, through the comparison between the characters, functions and conditions of such two models, in order to balance the startup procedure and the allocation of investigation privilege.This dissertation is composed of three parts, with about 29,000 words.The first part is an overview of the startup procedure. The startup procedures include two modes, one is random startup model, and the other is procedural startup model. The initiation of the investigation and reliance on the investigation procedure is the main characters of the random startup model. It plays the role as beginning the investigation and introducing the criminal cases to the criminal procedures. Its smooth operation is subject to two conditions: one is the intense right consciousness of the general people; the other is a perfect judicial review mechanism. Such two conditions may effectively restrain the malpractice of the investigation authorities. The main characters of the procedural startup model are the completeness of its system and the independence on the investigation procedure. In addiction to all the functions owned by the random startup model, it also has the function to restrict the privilege of investigation. It operation depends on the rationality of its own system, which includes proper proof criteria to start up the investigation and good discovery mechanism of criminal information. Therefore, the key for such two models is up to the allocation of privilege of investigation. Countries in which the investigation authority only has the random investigation privilege and the application of mandatory investigation requires appropriate judicial authorization, would take the random model; in which the privilege of mandatory investigation is note restrained by external force, with no juridical review system, the procedural startup model is preferred.The second part is an analysis of the current status of the"case filing"procedure, the startup procedure of our country. In the light of the case filing procedures as stipulated in the laws of our countries, it falls into the procedural startup model. However, due to the irregular examination before the case filing, the investigations have been actually started up before the decision on the filing in the judicial practice. The major reason for that is the unbalance between the privilege of random investigation and mandatory investigation of the investigation authority when the case filing procedure of our country was first designed.The third party is about the reform of Chinese case filing procedure. The reform of the filing procedure should neither directly turn to the random startup procedure, nor just perfect the supervision system on case filing, but build up the"two-steps investigation"system generally based on the current structure, and allocate the discretion of case filing to the prosecuting authority. The rationale of"two-steps investigation"system is to divide the investigation procedure into two parts from the time when the official decision has been made for case filing, and the preliminary investigation should take the random investigation model while the mandatory measures may be taken under the official investigation phase. In case that deciding privilege of case filing is granted to the prosecuting authority,"two-steps investigation"may not only resolve the uncertainty of the investigation measures in the examination phase of case filing procedure, but also sufficiently make use of the restraining function of the case filing procedure.