On The Abolition Of China’s Preliminary Investigation System Of Duty-related Crime

The preliminary investigation system is a kind of legal institution created byPeople’s Procuratorate in the dealing of duty-related crime cases, the main purpose ofwhich is to guarantee the quality of case-filing, reduce the risk in case-handling aswell as ensure real effects in the investigation of duty-related crime. The so-called“preliminary investigation” is conducted, before filing a duty-related crime case, bythe departments of the procuratorial organs dealing with embezzlement, bribery,dereliction of duty and infringements on rights to analyze, identify and initiate secretinvestigation on the clues and materials pertaining to the cases that are eitherdiscovered by the above departments or by accusers and informants. The preliminaryinvestigation system originated in the mid-1980s when more and more anonymousinformants emerged. To ensure the quality of case-filing, procuratorial organsrequired a certain degree of investigation on the clues of the case, however, such aninvestigation was only of a static and written nature. From then on, procuratorialorgans kept enriching and improving the content of preliminary investigation systemof duty-related crime; today, it has already become an integral part of theinvestigation system. According to the stipulations in Rules for Criminal Procedure ofthe People’s Procuratorate (for Trial Implementation)(2012Revision), preliminaryinvestigation can take the measures of inquiry, check of background, inquest,examination, identification and transference of evidence materials that will not limitthe personal and property rights of the people under preliminary investigation. It isforbidden to exercise compulsory measures or to seal up, seize or freeze the propertyof the people under investigation. Technical measures of investigation are alsoprohibited.For procuratorial organs, preliminary investigation system has remarkablyreduced the risk in handling cases, guaranteed the quality of case-filing and ensuredthe smooth proceeding of investigation-related work, however, it was never formally authorized by the Criminal Procedure Law of the PRC. Over the past30years,preliminary investigation system has always been defined by judicial documents orjudicial interpretation by the Supreme People’s Procuratorate, which has directly ledto the illegal existence of preliminary investigation system; therefore, numerousscholars demand the abolition of the system. Besides, preliminary investigationsystem itself has many insurmountable disadvantages: first, preliminary investigationsystem lacks its independent function, and all its related activities are the embodimentof investigation; second, preliminary investigation system leads readily to privilegeagainst self-incrimination, because during this period, people investigated will beinquired as witnesses by procuratorial organs; third, preliminary investigation systemis adverse to the protection of the legal rights of suspects-on one hand, criminalproceeding will not start in this period, and people investigated do not know theyhave been listed as suspects; with lawyers unable to involve as attorneys, they lackthe platform on which to respond powerfully to the investigative organs; on the otherhand, during preliminary investigation, whereas people investigated are not yetidentified as suspects, their personal information has already been held in the hands ofinvestigative organs; fourth, preliminary investigation system leaves plenty of roomfor rent-seeking behavior-the plentiful information, concerning the property and caseinvolvement of people investigated, will enable the investigators to ask for or acceptbribery from the people investigated, thus, the former are likely to procure improperinterests for the latter. All the reasons stated above form the basis for the author’scontention, that is preliminary investigation system of duty-related crime should beabolished.As for preliminary investigation system of duty-related crime, the commonopinion of scholars is to improve it instead of abolishing it, namely to amend laws soas to get the system authorized by laws and to regulate it through refining relevantsupporting systems. Disagreeing with the aforesaid opinion, the author holds thatpreliminary investigation system of duty-related crime should be abolished in China:first, the legitimacy of the system requires a change in the Criminal Procedure Law,which in turn changes the starting point of criminal procedures and affects the procedures as a whole, therefore, there is no much sense in the independent existenceof the preliminary investigation system; second, however well-improved the system is,it can never be restored to the status of static investigation set at the very beginning.Because on the part of the investigative organs dealing with duty-related crime,restoration of the preliminary investigation system equals to its abolition, so howeverwell-improved it is, it still falls into the category of a dynamic investigation system,as a result, numerous insurmountable disadvantages exist.Nowadays, against the backdrop of ruling the country in accordance with laws,preliminary investigation system is more of a liability than an asset, therefore, it isjustified to abolish it. However, such an abolition will exert much adverse influenceon the investigation of duty-related crime. Compensations should be made throughimproving investigation procedures, so as to ensure real effects in duty-related crimeinvestigating work.This paper aims at an in-depth and thorough research on the preliminaryinvestigation system of duty-related crime, however, due to the limited knowledgeand personal capabilities of the author, the paper still needs further improvement interms of the necessity analysis on the abolition and suggestions to improve theinvestigation procedures of duty-related crime. It is the author’s hope that through anexamination of foreign investigation systems on duty-related crime and afteranalyzing the adverse effects brought about by abolition of the system, propersolutions will be found to offer suggestions for the improvement of China’sinvestigation procedures of duty-related crime, and reference will be offered for thecriminal legislation in China.