| The judicial review is the outcome that the western rule of law civilization have developed for a long time, which contains the theory of law supremacy to carry out the restriction of power and the guarantee of right. Compulsory investigative behavior on mission of punishing crime and maintaining public order is a kind of restriction or deprival of the basic rights on the citizen by oneself, such as personal rights, property, privacy and so on. But in the investigative procedure of our country, completely deciding and performing by the organization of undertaking the duty of accusation oneself, lacking the judicial review procedure of the neutral third square. The missing of the designed system, not only contradicts with the common adaptable principle of the litigation on distinction and balance, but also with protection of human rights, particularly the right of suspect has developed a current in the world. More terrible matter, it has caused the phenomenon on invading human rights in judicial practice, such as the confession of being enforced, the detention of extension, etc.For a long time, our country is always entity true of the absolute value, under the guidance of this traditional concept of value, leading to too strong power of investigative organization. Absolute power, absolute corruption, not any restricted power will change the tool of invading personal rights very easily; moreover, passing this kind of compulsory investigative behavior on not any restriction finds the fact whether is true, then have the space of studying. Under the present rule of law background, any system of taking the sacrifice human rights as price and the law norm of lacking common adaptable litigation regulation to support, which will be abandoned by the civilization mankind in the rule of law society necessarily. Owing to this, writer sets out from the valuable target of protecting human rights, standing the regulation and theory of common adaptable litigation, claiming to build up the judicial review mechanism towards compulsory investigative behavior in criminal pertrial procedure of the our country, carrying on judicial authorization and review for the judgment in the investigative procedure by the court of neutral judicial organization, to avoid damaging the right of the citizen because of the monarchal power.This text consists of five sections.Part one, the overview of compulsory investigative behavior.In the part, the writer defines compulsory investigative behavior first, while on the circumstance of disobeying opposite person's will, the investigative organization adopts the method of constraining, touching basic rights of citizen seriously to collect or keep the criminal proof, find out the suspect. On one hand, compulsory investigative behavior is an inevitable request of punishing crime by the nation and maintaining public safety; on the other hand, in consideration of the power being abused easily and protecting human rights, there is a necessity that restricts to investigative power of expansion by the neutral third availably. Therefore, writer analyzed the present condition and the existent problem in investigative procedure of our country thoroughly, the key point is that compulsory investigative behavior on involving basic rights of citizen is carried out by investigative organization, being free from any external restriction and control, lacking the judicial reviewing procedure of the neutral third, resulting in the phenomenon on invading human rights in judicial practice.Part two, the judicial review for compulsory investigative behavior.As for the judicial review problem, the theoretical field have noted long before, but most of scholars set out from the current judicial system and the condition of our country, put forward that the people's procuratorate exercise the judicial review power to compulsory investigative behavior. According to this, the writer carries on re- defining and explaining in detail for the judicial review first in the part, who claims that exercising the corpus of the judicial review power can only be the people's court, only so, which can be realized the distinction and balance of litigation truly, then solving the disease of invading human rights in judicial practice. Then, the writer elaborates on the necessity about judicial review for compulsory investigative behavior from these five facets: First, the unified demand on punishing crime and protecting human rights; Second, carrying through the principle of decision and execution to separate mutually, to prevent the investigative organization from exercising illegally and abusing power availably; Third, perfecting litigable structure, to reconcile the mode of investigation with the mode of court mutually; Fourth, establishing the path of right remedies, to realize participant procedure inevitably; Fifth, the embodiments on the principle of guiltless presumption.Part three, the jurisprudent analysis on judicial review for compulsory investigative behavior by judicial power.The part is the point of this text. Where is the legal basis of being carried on judicial review for compulsory investigative behavior by judicial power? Why can't be carried on judicial review for compulsory investigative behavior by the prosecutorial power or police's power? According to these doubts, the writer gives a definition and distiction to the prosecutorial power and police's power first, elaborating the basic character of judicial power, while these characters are the sill on judicial review for compulsory investigative behavior exactly. Without doubt, the police's power has an obvious character of administrative power; but to the fixed position of prosecutorial power is not an answer in the theoretical field. The writer inclines to dual attribution opinion of administration and judiciature, but the judicial attribution of prosecutorial power appears in process of executing the procuratorial power completely, the procuratorial power should be a certain position of the prosecutorial organization. Taking the procuratorial power as the sill of the prosecutorial power don't have the character of judicial power, such as neutral, passive, final, independent and so on; in the meantime, the prosecutorial organization differs from judicial organization in the constitution, organizational system and so on. Therefore, the writer thinks that the prosecutorial power should be administrative power ultimately. On the basis of this, writer elaborates the proper on judicial review for compulsory investigative behavior by judicial power from three facets: First, the principle of the litigation on distinction and balance; Second, the principle of procedural justice; Third, the principle of protecting human rights and right remedies.Part four, The comparison in judicial review system of compulsory investigative behavior among the rule of law country.The judicial review of compulsory investigative behavior has become a common adaptable international criteria of criminal procedure, which is practiced by all the rule of law country, but it is inborn imperfection in the criminal pretrial procedure of our country. The writer tries to survey judicial review system of compulsory investigative behavior on the main rule of law country, to structure judicial review mechanism of our country. In the part, the writer surveys the scope of judicial review on compulsory investigative behavior in the rule of law country first; then the writer focuses on introducing the procedure of judicial authorization and judicial remedies in the main rule of law country. Passing the survey of the above both, the writer concludes the common characters on judicial review mechanism of the western rule of law country as follows: First, establishing the mechanism of judicial authorization and review for compulsory investigative behavior generally; Second, establishing the mechanism of strict controls and broad remedies for pretrial detention generally; Third, restricting investigative behavior by the judicial adjudicative procedure basically.Part five, the structure of judicial review mechanism for compulsory investigative behavior. Passing the analysis of above several parts, building up judicial review mechanism for compulsory investigative behavior, which not only is the embodiment on the common adaptable litigation regulation and theory, but also is the urgent request of judicial practice. Therefore, the writer puts forward to some opinions on structuring the judicial review mechanism for compulsory investigative behavior of our country from five facets: First, the corpus of judicial review; Second, the scope of judicial review; Third, the procedure of judicial review; Fourth, the contents of judicial review; Fifth, the result of illegal investigation.The structure of judicial review mechanism for compulsory investigative behavior, which not only need the establishment of the related system, but need people's idea and current system to support. In our country, judicial power don't real independence yet, the judicial organization position of prosecutorial organization haven't been moved basically, the powerful concept of state and society has deeply rooted in the heart, as above problems or barriers have still too many, but these reasons why the theoretical and legitimate field should not be content with present condition of repairing and special nation of abiding. Calling urgently with the judicial practice, raising of the right consciousness gradually, judicial review mechanism for compulsory investigative behavior of having the proper and rationality, which will born in civilized China necessarily. |
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