Research On Monitoring Lien Measures

In March 2018,the Supervision Law of the People’s Republic of China was formally promulgated and put into effect,giving supervisory commissions three duties of supervision,investigation and handling,and 12 investigative measures,including "talking,questioning and detaining".Since then,the lien measure has formally replaced the "Shuang gui" measure,and its effective implementation in the past three years has played an important role in cracking down on duty crimes and promoting the comprehensive and strict governance of the Party.The longest term of lien can be up to six months,which is highly closed and strongly restricts personal freedom.As the relevant provisions are not perfect enough,there are many controversies in theory and practice.In this paper,the integrated use of comparative analysis,literature research methods,from two aspects of theory and practice system was studied for the lien measures,put forward reasonable Suggestions,in order to lien measures is able to run in high efficiency on the orbit of law norms,to ensure that the duties illegal and criminal investigation can achieve the political effect,social effect and legal effect unifies.The current supervision lien legislation has the following problems:the standard of the scope of supervision lien is not uniform,and there is no distinction between duty violation and duty crime;The treatment rules of duty violation and duty crime are not coordinated.The investigated person detained for duty crime can deduct the term of sentence in the judicial judgment of freedom of guilt,but the investigated person detained for serious duty violation can not enjoy similar discount in the administrative punishment.During the detention period,the lawyer cannot be entrusted as the defender,which leads to the basic rights of the investigated cannot be effectively protected;Lien as a single measure to restrict personal freedom,there is no gradient lien period and no alternative restriction measures,which violates the principle of proportionality.The length of detention is long,and the intensity of restraining personal freedom is close to that of arrest in criminal coercive measures,but there is no mechanism similar to the review of the necessity of criminal detention,and there is no review mechanism of the necessity of detention.In terms of the connection between law and law,during the period of examination and prosecution of duty crimes,the specific circumstances of returning to the supervisory organ for supplementary investigation and the procuratorial organ for supplementary investigation on its own are not clear,there is a lack of practical and specific compliance in practice,and whether the right of lawyers to intervene during this period needs to be reasonably restrictedThe practice of supervising lien mainly has the following problems:for the cases of suspected duty crimes,there is usually a suspicion of pre-judgment of the investigated person’s "dismissal from public office" before the case is transferred for examination and prosecution when the lien is lifted;The phenomenon of "repeated confession" in lien cases is serious,and the suspicion of "confirmation" in bribery cases is deliberate.After lifting the lien,the case is transferred to review the prosecution and the procuratorial organ is invited to intervene in the excessively high proportion in advance.The core point of this paper is that in terms of the innovation theory of lien measures,it is necessary to refine the operating norms of lien measures in line with the basic concepts of human rights protection and procedural justice,and set the time limit of lien in layers to meet the needs of handling cases.Strengthen internal supervision,establish the review system of the necessity of lien,prevent the improper operation of lien power;Explore the establishment of duty system of public lawyers in lien places;Establish a unified and coordinated punishment deduction mechanism for duty violations and duty crimes,appropriately raise the threshold of the application of lien measures for serious duty violations;We will improve the specific application of supplementary investigation and supplementary investigation by supervisory organs.In the practice of lien measures,investigators should abandon the idea of excessively "emphasizing oral confession" change the traditional thinking of handling cases,and enrich the investigation methods.Comprehensive and objective collection and transfer of evidence;To control the proportion of early intervention of the procuratorial organs in lien cases;Investigators conducted investigations and evidence collection in accordance with the law,and improved their ability to cross-examine in court.