Perfecting Of The Decision-making Process Of Detention Of Duty-related Crimes

For a long time, as a result of various reasons, duty crime is arrested by the same procurators who have the power of the investigation of the duty crime in China. It will lead excessive concentration of power, and difficult to supervise the power of the investigation of the duty crime, and missing the neutrality of the arrest procedure. Theorists and practitioners have put forward various proposals for reform in hope that the decision-making process of the arrest would be improved. The theorists appeal intensely that the jurisdiction of arrest of duty crime should be attributed to the court. However, from our country's reality, there are many disadvantages if the court has the jurisdiction of arrest. From system perspective and practical operational level, this proposal is not operable in the short term. In view of one investigate itself to arrest have too many disadvantages and court have the jurisdiction of arrest is not operable, Supreme People's Procuratorate basis central deployment has carried on the reform to the arrest procedure of duty crime. Supreme People's Procuratorate decide below the provincial level the People's Procuratorate handles duty crime, the arrest decision-making power exercises by on first-level People's Procuratorate. The crime by taking advantage of duty case arrests in the decision-making power to raise first-level has the relative rationality and the validity. But, we must realize the question which exists to the reform, and takes the effective measure to perfect.In addition to the preamble and the conclusion, the paper is divided into four parts, about 30,000 words.PartⅠ:Examines the reform suggestions to the examination arrest way of duty crime. In this part the related each viewpoint about the arrest way of duty crime which existed in the theorists and academic circle carry on the detailed analysis."Maintained the present situation saying"is unable to overcome the malpractice that one investigates itself to arrest exist;"Handed over exercises by the court saying"is not operable;"Judicial relief afterward saying"similarly cannot overcome the malpractice that one investigates itself to arrest exist;"Handed over by on first-level procuratorate exercises saying"had the relative rationality. PartⅡ: Valid and rational analysis about the arrest decision-making power of duty crime to raise first-level. The arrest decision-making power of duty crime to hand over exercises by on first-level procuratorate that central is accepted and starts to carry out, compares with other reform plans, has certain superiority in system stratification plane and in actual operation stratification plane. The arrest decision-making power of duty crime to promote first-level is advantageous in overcoming flaws which the procuratorate parallel surveillance attenuates, and strengthening to crime by taking advantage of duty detection power surveillance restriction; is advantageous in maintaining the examination arrest work the objectivity and the independence, and further strengthening Procurator agency's male letter strength; is advantageous in removing the disturbance from the regional protectionism, and dispersing subordinate procuratorate in handles a case the resistance which will meet in the process; is advantageous in strengthening to the suspect human rights protection. This reform regarding the consummation crime by taking advantage of duty case's arrest decision procedure, the optimized examination authority disposition, strengthens aspects and so on detection surveillance to have the important meaning, the reform has the relative rationality and the validity.PartⅢ: Introduce the arrest decision procedure of duty crime after proposing the first-level, and existence questions in the reform. The union Supreme People's Procuratorate issues "the Case which the People's Procuratorate Puts a case on file and begin investigations about the Provincial level Below by On First-level People's Procuratorate To examine the Decision Arrest the Stipulation (Implementation)" the concrete elaboration after the practice arrests in the decision-making power to propose the first-level crime by taking advantage of duty case's examination arrest procedure. In the second half of this part author will analysis questions in the reform. This reform about arrest decision-making power of duty crime to raise the first-level is merely arrests the decision-making power to the crime by taking advantage of duty case to carry on has redistributed, has not realized the arrest procedure of duty crime the legalization; and the arrest decided that institution's neutrality question has not been solved; suspect's in examination arrest procedure participation insufficiency, right relief procedure still flaw; Attorney affects is unable to obtain the effective display. At the same time, the reform also did not have about face crime by taking advantage of duty detection to supervise the empty questions; the internal surveillance's flaw still existed. Moreover the reform itself also exist handles a case existences and so on deadline, personnel to dispose, to handle a case the place which system, working mechanism do not adapt, needs to make the corresponding adjustment.PartⅣ: The suggestion to perfect the reform about the arrest decision-making power to raise the first-level of duty crime. For cause this reform to land on feet and achieved the reform's goals, we must aim at each kind of question which exists in the reform, and take the unnecessary measure to carry on the consummation. First, In order to safeguard the crime by taking advantage of duty case to arrest in the decision-making power to raise the first-level reform work to carry on smoothly, the Procuratorial agency should adopt a series of realistic questions which in the effective action solution reform appears. Next, we must construct the related necessary system, realizing the crime by taking advantage of duty case to arrest the decision procedure the legalization. Includes the introduction lawsuit-like examination arrest decision procedure specifically——Through stressed that public prosecutor's objective duty, consummates attorney to involve the examination arrest stage the programming, the establishment arrest hearing system to strengthen the examination arrest procedure the lawsuit, the perfect crime by taking advantage of duty case arrests the decision procedure; Perfect suspect's right relief procedure. Once more, we must strengthen the outside supervision restricts of duty crime, overcome the inherent flaw which the pure internal surveillance exists. Through consummating the people's supervisor system, strengthening National People's Congress to the crime by taking advantage of duty case's surveillance dynamics, strengthening on news supervision of public opinion to the crime by taking advantage of duty detection power surveillance restriction, guaranteed that the Procuratorial agency's detection power of duty crime exercises fairly legally.