Realistic Exploration And Regulatory Conception Concerning Our Country's Structure Of Scout And Control

Structure of Scout and Control is a subordinate category of Structure of Criminal Litigation which is the basic category in the system of criminal litigation theory. The researches on relevant issues made by our country's scholars are mostly carried out from the angle of relation between police and prosecuting attorney. It is very necessary to take Structure of Scout and Control as theoretical node for setting up the platform to carry out the comparative study for legal system of China and foreign countries on the level of criminal litigation theory. The existing theory of structure of criminal litigation comes from the West, so does the theory of structure of scout and control, whose theory and practice are based on Separation of the Executive, in other words, administrative power is exercised by police force and procuratorial organ (police and prosecuting attorney are the real main parts of investigation or/and public prosecution power) in pre-trail procedure, and they must be strictly restricted (judicial control) by court (judge is the only owner of judicial power, judgment is justice). Therefore, although the existing structure of scout and control pays attention to the allocation of investigative power, its operation depends on judicial power's effective restriction for investigative power. At the same time, western countries, especially the countries of Anglo-American law system, inherit the idea of Equality and Freedom, take Due Procedure as the intrinsic value of criminal litigation and take Human Rights Guarantee as the prime function of criminal litigation, the lawful rights of criminal suspect and accused person are protected from the height of the Constitution so as to further strengthen the restriction for the power to prosecute.Therefore, although the structures of scout and control for the two major law systems have different modes, such as separation of scout and control, investigation by each department and prosecution function, or unification of scout and control and leading investigations of procuratorial organ, or separation in scout and control organizations and unification in functions, there is clear location of criminal litigation for the power of procuratorial organ and police force and the overall balance of structure of scout and control is guaranteed by the restriction for power to prosecute. By contrast, there are great differences between the foundation of our country's structure of scout and control and the western countries', judicial status is possessed by public security organ and procuratorial organ as well as court at the same time, additionally, the core value of criminal litigation lies in guaranteeing the enforcement of criminal law and the basic goal of criminal litigation lies in punishing crimes, which make that the entire process of criminal litigation is decided by the investigation of public security organ, court has no right to carry out judicial review and authorization for investigations, the procedural rights of criminal suspect, accused person and even other participants in proceedings are not completed to a great degree, especially lacking in effective relief, procuratorial organ who performs the function of legal supervision is the only one that can restrict investigative power. Therefore, it is necessary to redefine the existing structure of scout and control for the purpose of making clear the judicial property of procuratorial organ (procuratorial power) and the administrative property of public security organ (power of investigation with respect) so as to provide theoretical support for procuratorial power's judicial control to power of investigation with respect.Because the investigative power of public security organ has strong judicial property, while procuratorial organ's legal supervision for public security organ is lacking in judicial authority, the existing structure of scout and control in our country is serious unbalance. Particularly, registration supervision scope of procuratorial organ is too narrow which belongs to Flexible Supervision and can't be carried out, and state's power to prosecute can't be effectively realized; investigation and supervision of procuratorial organ are seriously disconnected with the investigations of public security organ, which lacks in the supervision for compulsive investigation measures and enforcement measures, the exertion for investigative power can't be received effective judicial control; effective supports for the public prosecution of procuratorial organ can't be provided by the investigations of public security organ, and it is very difficult to form resultant force of prosecution for investigation and litigation; timely and effective legal aids can't be received by criminal suspects, right of defense can't be received material safeguard and their lawful rights are very easy to receive invasion; both parties of scout and control dispute over trifles with each other which has strong impact on litigation efficiency, and it is also very serious that the lawful right of criminal suspect is violated in disguised form.Before carrying out the regularization for our country's structure of scout and control, it must be based on the reality of our country, which is based on our country's constitutionalism foundation, fundamental principle of criminal litigation and the basic framework of structure of criminal litigation, to establish certain regulatory principle. Insisting on the present judicature mechanism in our country is to stick to the investigation and litigation principle of division of labor with individual responsibility, mutual coordination and mutual condition; public security organ's leading position for structure of scout and control is fundamentally cancelled for establishing the value proposition of criminal litigation--Procedural Justice and the notion of criminal litigation purpose to assure human rights; procuratorial organ's authority for legal supervision is set up for establishing the notion that power of investigation with respect is carried out judicial control by procuratorial power; civic rights'position to carry out equal confrontation with investigative power is set up for establishing the notion that state power is restricted by civic rights.The constitutionalism foundation in our country is the political system of the Government, the Court and the Procuratorate under the people's congress, among which, both procuratorial organ and people's court are judicial authorities which are the state organs of legal supervision. The fundamental principle of criminal litigation and the basic framework of structure of criminal litigation in our country is that division of labor with individual responsibility, mutual coordination and mutual condition. Therefore, our country's judicature mechanism is radically broke through by the mode of Scout and Control Integration, while the mode of Prosecution Guiding Investigation is also not good for procuratorial organ to carry out legal supervision function, natures of the two regulatory modes are to strengthen the coordination of scout and control, and the real intention of judicial control of procuratorial organ's legal supervision function is ignored in various degrees, which is not good for ensuring the lawful rights of criminal suspect and participant in proceedings and also is difficult for correcting the situation of unbalanced structure fundamentally, all the above are not the Selection of Reality. At the same time, under the present judicial situation, it is also fantastic to copy the construction mode of western countries and undertake the judicial control for investigative power by court.The specific conceptions for carrying out regularization on structure of scout and control are as follows: firstly, legal supervision for legislation should be perfected so as to provide legislative safeguard for procuratorial organ to carry out the function of legal supervision. Procuratorial organ's restricting relationship for public security organ in pre-trail procedure should be made clear, procuratorial organ should be given timely superintendence for the start and end of public security organ's criminal litigation procedure, judicial examination power for the compulsory investigation of public security organ and judicial control power for investigation and custody so as to establish supervisory procedure as well as set up and perfect supervisory system; the procedural rights of criminal suspect should be expanded so as to ensure their rights to participate in proceeding and rights of opinion, and relevant right relief procedure should be perfected. Core objective is to establish procuratorial organ's authority for legal supervision. Secondly, the working mechanism inside procuratorial organ should be perfected so as to provide organization safeguard for procuratorial organ to carry out the function of legal supervision and establish the system for directing investigation and evidence collection of public prosecution. Directing investigation and collecting evidence in accordance with the law should be stripped from the function of procuratorial organs'investigative and supervisory department, procuratorial organ is only responsible for investigation and supervision through simplifying function. The core objective is to establish procuratorial organ's neutral status for legal supervision. Thirdly, system for directing investigation and evidence collection of public prosecution should be established, and the cooperation with public security organ should be strengthened based on intensifying restriction. When legal supervision is strengthened, the formation of prosecution resultant force should be further ensured so as to solve the problem of prosecutor's in-fighting. The core objective is to establish the direction of procuratorial organ's public prosecution for investigations.