Establishment Of Our Country's Judicial Review System

In modern society people is pursuing the "primacy of law" principle. "Primacy of law" is the essence of "judicial supremacy", the core philosophy is to let the court review the legality of coercive powers of the state and society. According to the principle of "the rule of law", the law protects civil basic procedural rights, when their rights are voilated, any citizen has the right of getting a fair and effective judicial remedy. Countries are not only bonded by the law and the rights, but also restricted by the fair and effective judicial protection. Investigation process is an important component of criminal procedure, the quality of its operations is essential to realize the purpose of criminal proceedings. The state organs' violations to citizens' property and personal right are mainly in the investigation process, therefore judicial review system for the maintenance of fairness and justice in the investigation process is of great significance.The judicial review, as a kind of mechanism of the separation of powers and restriction, not only contributes to maintain the fairness and justice of procedures, but also helps to protect of human rights. And in the investigation process, courts exercise the judicial review of the investigation process to balance and constraint the investigative power, in order to prevent the expansion or abuse of the investigative power.There are many problems in our country's investigation process and it is a serious infringement of the citizen's lives and property. Therefore, it is very necessary to establish the judicial review mechanism in the process of investigation in China. This paper from the perspective of the investigation process, proposed the idea of establishing the judicial review system. The paper is divided into five parts:Chapter 1 The theory founds of the judicial review system. It pointed out that only the implementation of the separation of powers and restriction theory can be effective in preventing the abuse of power and protect human rights. In criminal cases, the freedom and rights of criminal suspects and other relative are most vulnerable to violate, so the significance of judicial review for the protection of human rights looks very important. And in order to achieve legitimate investigative process, we must establish the concept of procedural justice, and carry through the judicial review in the investigation process.Chapter 2 Studies of judicial review system in the investigation process from the perspective of comparative law. Particularly through an objective analysis of the judicial review system in the civil law countries and common law countries, the author revealed that although they have many similarities in the overall structures, each has distinct characteristics in the specific design of the system. For example, in two fundamental laws countries, they all allocate subjects of judicial review to a judge or judges of the pre-play. But some civil law countries, sometimes the prosecutor of the prosecution organs also exercise certain matters jurisdiction, belonging to the broad subject of judicial review. In addition, as to the scope of judicial intervention to the investigation process, although both of them included the special investigation process and the review of coercive measures, the specific behavior of investigation is different, and in some countries and regions, the scope of the judges involved in the investigation process is much broader than other countries.Chapter 3 The necessity of establishing our judicial review in the investigation process. The author not only pointed out that the problems of our investigation process: the assembly structure of the system in the investigation process led to the lack of judicial review, the abuse of the power led to excessive imbalance, as well as the defence of lax supervision of the procuratorial organs made justice corruption common occurrences. The author also analyses the deep-rooted reasons of the lack: First, the historical and cultural reasons, China's judicial and administrative regardless of the ancient, traditional Confucian culture, and the long-term unification of the national structure are impacting China's legal system, it should not be overlooked. Second, our investigation mode restrictions, China is a typical mode of the terms of the reference of the investigation, greatly restricts the possibility of the establishment and implementation of the judicial review system. The third is the concept of judicial, it exists for a long time in China, as a result of the criminal proceedings could not be the effective implementation of the key reasons, and the three organs violation proceedings are common occurrences. The last, the author put forward the need of establishing judicial review in the investigation process, for the realization of organic unity between punishment for a crime and the protection of human rights, which is of positive significance to our legal system of supervision and constantly improve, and speed up convergence with the international criminal law, carrying out socialist rule of law state-building.Chapter 4 The establishment of our judicial review system in the investigation process. Based on the foreign judicial review system, the author put forward specific ideas of construction of the system. First, about the subject of judicial review system, the subjects that have the right to advance judicial review include: investigative organs, procuratorial organs, criminal suspects and their legal representatives and close relatives, defenders, other parties in a lawsuit. The main body who carry out the right of judicial review is a neutral referee―the people's court to play. The second is to carry out the scope of judicial review system in the investigation, should cover all of behaviors to restrict and deprive the rights and freedoms of citizens, in addition to including the mandatory means of investigation, but also all other rights and freedoms of citizens involved in the investigation, the judges should have the right to interview and to review. The third is the idea of building judicial review system in the investigation process from multi-level review, including not only prior review, but also after the review-review of the terms of reference, the appeal review, the trial review, the complaint review, the human rights complaint review. Finally, the author put forward the methods of our judicial review in the investigation process, in generally, there are two ways: writing and the words, in the investigation process, the review should be done in different ways based on the characteristics of different levels.Chapter 5 Related procedural safeguard system. The author believe that only system design is not enough for constructing of our judicial review in the investigation process, there should be procedures related to system security: the establishment of the integration model of detection and seizure, the establishment of the Right to Remain Silent, the improvement of the rule of illegal evidence exclusion, the corresponding provision of the procedural legal consequences. With these rules matching the system, judicial review system can be truly effectively applied in the investigation procedures.In the verification process of the full text, the author completed the paper in a logical structure: to ask questions– to analyze the problems– to solve the problems, believing in concept of the rule of law- fairness and justice, according to the principle of "law limits the right" and "the right limit the right", in a purpose of protecting and safeguarding social security and the interests of the people, the author put forward specific ideas of building our judicial review system in the investigation process. Our investigation procedures have various shortcomings, such as the excessive expansion of the investigation power, ineffective supervision of the supervision organs. To analyze the reasons, it is inseparable with China's historical and cultural factors, and the traditional concept of justice. By contrast, the investigation procedures abroad are more reasonable in the design of structure, they control the behavior of the investigation organs through the establishment of judicial review system effectively. This provides the experience for our establishment of judicial review system. Learning from foreign countries' operation of judicial review system in their investigation process, the author interpreted the idea from multi-level, multi-angle that we should also establish the system of judicial review in China.