An Empirical Study On The Involvement Of Procuratorates In The Investigation Of Homicide Cases In Advance

Theoretically speaking,the relationship between the public security bureaus and the procuratorates in China is "division of labor,mutual cooperation and mutual restriction".At the same time,the procuratorates fulfill the legal supervision duties assigned by the Constitution and the Criminal procedure Law.In judicial practice,however,both sides tend to emphasize cooperation and ignore supervision.Without the supervision of relevant mechanisms,the procuratorates are not enthusiastic about participating in investigations and supervising investigations.At the beginning of 2013,in the special work of clearing up and correcting long-term indecision cases,the S province procuratorate found that homicide cases accounted for the majority and the proportion of homicide cases was also relatively large in those cases involving prosecution reflected through petition.Among the false and wrong cases published in various parts of the country,the percentage of homicide cases was also relatively high.There are two main reasons for this circumstance.Firstly,the investigative agencies are not meticulous and comprehensive in the homicide cases.Especially the fact that some on-site evidence has not been fully extracted and fixed in time,which directly affects the review,prosecution,conviction and sentencing of cases;Secondly,in the homicide cases,the main mean for the approval of arrest and prosecution is still a written review.The procuratorates obtain case information by reviewing the file material and cannot have a comprehensive grasp of the whole case.Even if the problems are found,most of the cases have lost the on-site conditions of the supplementary investigations,which results in the lack of key evidence for conviction and sentencing or the defective evidence and makes it more difficult to charge the crime.All in all,as China’s criminal litigation model shifts from the traditional investigationism to the judgmentism,the rules of evidence and the way of trial have changed greatly.In the inportant homicide cases,the evidence collected by the investigating agencies is not commensurate with the need of the procuratorates to accuse the crime.This situation directly leads a dilemma: first,giving up the charge is condoning the crime when the evidence is defective;second,forcible prosecution is contrary to the principle of in dubio pro reo.Based on the urgent need of reality,the procuratorate of S province have to take measures to strengthen the supervision of scene investigation of homicide cases.This dissertation mainlyadopts the empirical analysis method to carry out research on the procuratorates’ in-advance involvement in the investigation of homicide cases.The dissertation is divided into four parts except introduction and conclusion,totaling more than 30,000 words.The first part is the background of the procuratorate gets involved in the homicide cases investigation in advance.From the perspective of the investigative agencies and the procuratorates,there are four points constituting the realistic reasons: the collection of evidence by the investigative agencies is biased,the existence of legal documents is flawed,the site survey of the homicide cases is not comprehensive,and with the implementation of the substantive reform of the trial,the procuratorates have to take effective measures to ensure that the evidence they have obtained can effectively charge the crime.The second part analyzes the current laws and regulations of China and the systems formulated by S Province..The Constitution and the Criminal Procedure Law have established that the procuratorates are the national legal supervision agencies and have the power to supervise the investigation activities of public security bureaus.The Rules of Criminal Procedure of the People’s Procuratorate(for Trial Implementation)directly stipulate that procuratorates may participate in the investigation activities of important cases in advance by sending personnel to participate in the case discussion,re-inspection,and review of public security bureaus;The Provisions of the Central Political and Legal Committee on Effectively Preventing False and Wrong Cases affirm the above-mentioned intervention methods,and emphasize that the procuratorates can participate in the discussion of important cases of the investigative authorities,and once again point out that it is supervising the investigation activities.The Opinions of the Supreme People’s Procuratorate on Strengthening the Work of Public Prosecution in Court determine that the way for the procuratorates to intervene in investigation is to attend on-site investigation and case discussion,and point out the task and principle of intervention.The research object S province made a series of normative documents and made concrete guidance on how the procuratorates intervene in the investigation of homicide cases.The Provisions on Strengthening Cooperation and Supervision and Restriction in Criminal Litigation Activities not only established the notification system before the procuratorates involved in the on-site investigation of the homicide cases for the first time,but also proposed that public security bureaus can also supervise the procuratorate on the basis of refining the mutual cooperation measures between the Public Security Bureau and the Procuratorate.It also established the notification systemand the system of proposing replacement of the case handler to ensure the intervention effect.“The Procuratorate Intervene in the Investigation and Inspection Process of Homicide Cases” further refines the notification system before the procuratorates are involved in the on-site investigation of the homicide cases from the aspects of the intervention subject,the notification object,and the notification procedure.It divides the procuratorates’ guiding homicide and evidence collection process into six major steps,and the supervision method is divided into three major types.“The References for Intentional Homicide and the Requirements for Evidence Collection” provide comprehensive and detailed rules for the collection of evidence for homicide cases from seven aspects.Starting with this series of systems to examine whether the development of this mechanism is reasonable and feasible.In the third part,through the collection of the data from the pilot area to the S province and from 2013 to 2018,the operation of the mechanism is grasped macroscopically.The author mainly compares and analyzes the data from the perspectives of intervention,suggestions for adoption,corrective situation,return ratio of the supplementary investigation,period of review and approve to arrest,trial period,and homicide processing period.Then,by explaining typical cases to see how the mechanism operates in practice and the effect of the individual case.Through the above-mentioned combing of the mechanism,the analysis of the macro situation,and the individual case study,the rationality and inadequacies of the system are analyzed.Judicial practice shows that the establishment of the police-prosecutor mechanism can ensure that the prosecutor enters the homicide cases scene at the first time,paying attention to procedural review can promote the intervention activities to implement according to law,strict regulation of evidence-taking behavior can improve the effect of charge,and clear key supervision links can improve the efficiency of intervention.However,during the operation of the mechanism,there are still some problems.For example,insufficient cooperation of investigation agencies leads to passive intervention,the procuratorates can not grasp the appropriateness of intervention,and the neutrality of the cases after intervention cannot be guaranteed.The lack of limitation to the procuratorates weakens the intervention effect,and the problem of more individual cases and less typed cases is urgently needed to be resolved.The fourth part puts forward suggestions for the existing problems based on certain reasonable points.First,the internal police-prosecutor mechanism should be strengthened.The procuratorate should establish a multi-channel receiving murder information system andpopularize the investigation and supervision inspection room..With respect to the investigative agency,on the one hand,it shall urge the investigators to realize the necessity of the procuratorates’ intervention,on the other hand,it shall formulate a new assessment system.The second is to clarify the division of duties and responsibilities between the prosecutor and police in homicide cases.The investigative agency should play a leading role in the whole investigation,while the procuratorate is responsible for supervising the collection of evidence and reviewing the legal documents.The third is to designate a special person to sponsor the investigation of the involved homicide cases.The fourth is to give the procuratorate procedural power to guarantee intervention.Not only does the law shall give the procuratorate procedure disposition power,but the documents that correct the violations should be transferred with the volume,and the procedural violation are judged by the court.The fifth is to conbine individual case guidance and typical case guidance.For the homicide cases that the application of the law is controversial in the determination of the crime and the key evidence is forensic in evidence collection,the typical case guidance shall be adopted.For the homicide cases with new modus operandi and difficulties in obtaining evidence,the individual case guidance shall be adopted.Through the above suggestions,the mechanism is expected to play a greater role in reducing overdue custody,preventing false and wrong cases,and improving judicial credibility.