An Empirical Research Of Supplementary Investigation During Review And Prosecution Stage

As the continuation of the investigation activities, supplementary investigation during review and prosecution stage plays an important role in criminal litigation. It is helpful to find out all fact, to consummate the relevant evidence and to ensure the quality of prosecution. Therefore, in a larger sense, it has the necessity to exist. But due to the unclear legislation and the lack of supporting measures, there are many problems in practice such as misapplication of supplementary investigation, ineffective results of supplementary investigation and the absence of human rights protection. All these problems seriously hindered the correct application of supplementary investigation. On the basis of empirical research of Y district People's Procuratorate, this paper expounds the operation situations and its existing problems during review and prosecution stage, analyzes the causes of those problems, and puts forward the countermeasures of improvement by referencing to relevant practices of Y district People's Procuratorate. Then, based on the above analysis, this paper aims to provide new ideas to improve the supplementary investigation during review and prosecution stage.Three chapters are included in this paper, besides the introduction, there are about thirty-eight thousand words.The first chapter focuses on the implementation of the supplementary investigation during review and prosecution stage and problems of implementation. The data in practice shows that the number of supplementary investigation accounts for a high proportion of all cases and some cases of the same type were repeated back to supplement. Around 2013, the cancel rate and sue rate of the supplementary investigation cases were all obviously changed and effects of these cases were improved. Analyzing the implement situation of the supplementary investigation, there are three main aspects of the problems: firstly, the conditions of supplementary investigation do not play a role as guidance or constraint, some cases which were not in conformity with the conditions were returned for the second time. Secondly, the human rights protection was not in place and the custody measure is hard to be changed for the criminals which were held in custody. Besides, the suspects' right of being informed, the right of dissent, petition and complaint were difficult to be implemented. Thirdly, the effects of supplementary investigation are not ideal. The proportion of secondary return supplementary investigation and the proportion of canceled cases were high.The causes of the problems will be shown in the second chapter. To a very great degree, the misuse and abuse of the supplementary investigation were due to the ambiguity legislation and the lack of sanction measures. According to the existing legislation and judicial interpretation, prosecutors have the right of discretion about whether to return the case, but the right was easily misused since the lack of institutional constraints. The causes of the infringement include two aspects: firstly, due process was not set up. The supplementary investigation was the procuratorial organ's unilateral decision and the defense cannot participate in the decision-making process. Secondly, as a result of weak consciousness of human rights protection, the procuratorial organs consider crime punishing as the main purpose. Besides, the legal provisions about who is the body of the view are not clear so that detention necessity review failed to be implemented in practice. There are three main reasons to explain why some supplementary investigation cases do not have effects: firstly, the returned cases do not worth supplementary investigation. Secondly, the outline of supplementary investigation case is not normative which cannot guide supplementary investigate. Thirdly, influenced by investigation centralism, it is difficult for the procuratorate to restrict and supervise investigation effectively.Based on the analysis of above reasons, the third chapter puts forward the improvement suggestions. To avoid abusing or misusing supplementary investigation, on the one hand, clearing the conditions of supplementary investigation is needed, including substantive conditions and procedural conditions, the conditions of using the urging letter, the conditions of returning the criminal suspects which was missed in the investigation stage and the conditions of investigating by the prosecutor themselves. On the other hand, it should prescribe appraisal systems and the sanctions against abuse. To be specific, in order to guarantee the right of criminal suspects and ensure the defense to participate in decision-making process reasonably and orderly, it should build due process of supplementary investigation. At the same time, it should strengthen consciousness of human rights protection in supplementary investigation. Department of public prosecution should review all criminal suspects which were held in custody among supplementary investigation cases. Once the evidence is insufficient, it should change compulsory measures immediately. To improve the effectiveness of supplementary investigation, it should work from three aspects: first of all, modify the provisions of supplementary investigation. If the case does not meet the requirements for the prosecution, the procuratorial organs can make a non-prosecution decision directly in order to avoid returning the cases without supplementary investigation value. Then, it's necessary to standardize the writing of supplementary investigation outline, clear investigation items and ensure it plays a guidance role. Finally, procuratorial organs should strengthen the guidance and supervision of investigation including universal guidance of investigation supervision department and targeted guidance of public prosecution department.