Investigation and public prosecution are the relationship between source and flow. For a long time, there has been a phenomenon that public prosecution is more important than investigation and supervision in criminal procuratorial work. Although there are many reasons, the division of investigation and public prosecution is undertaken by public security organs and procuratorial organs respectively, so that theoretical research and practical exploration have been in a relatively weak position in taking into account investigation and supervision.
The superficial reason for the passive situation of investigation and supervision is imperfect legislation and lack of maneuverability, and the deep reason is that the basic theory of investigation and supervision is not clear. Why should we set up a system of investigation and supervision? What is the essence of investigation and supervision? The existing theoretical research only discusses how to implement investigation and supervision on the premise that the Constitution has set up a legal supervision organ and the Criminal Procedure Law has set up a criminal procedure supervision system, and rarely involves the basic theory of investigation and supervision. In fact, it is the lack of this basic theory that leads to the procedural defects of investigation and supervision legislation.
Investigation is the basis and premise of criminal proceedings. It is the starting point of criminal proceedings and an important link, which is related to the whole process and result of criminal proceedings. Therefore, it is particularly important to supervise the investigation power. Broadly speaking, the supervision of investigation power comes from all aspects and ways, including the supervision according to the criminal procedure system, the supervision from the state power organs and the investigation organs, among which the investigation supervision of the procuratorial organs should be the most authoritative, legal and realistic. However, due to various restrictions, the investigation and supervision mechanism of procuratorial organs failed to play its role to the maximum extent.
First, the concept, characteristics and scope of criminal investigation and supervision
(A) the concept of investigation and supervision
There are different opinions about the concept of investigation supervision. The author believes that investigation supervision should refer to the procuratorial organs' examination of cases in the process of investigation, and the supervision of whether criminal filing and investigation activities are legally implemented.
(2) Scope of investigation and supervision
Regarding the scope of investigation supervision, apart from the supervision of investigation activities, there are different views on whether it includes the supervision of criminal filing and the review of cases transferred by investigation organs. Some people believe that the investigation and supervision work of procuratorial organs includes criminal filing supervision and criminal investigation activities supervision. Another view is that investigation supervision is the supervision of investigation activities, excluding review, arrest and prosecution. There are also views that investigation and supervision include examination and arrest, examination and prosecution and supervision of investigation activities. The author believes that investigation supervision includes three contents: criminal filing supervision, investigation activity supervision and review of cases transferred by investigation organs during investigation. The supervision of criminal filing and case review should be the contents of investigation and supervision. Because filing a case is the start of investigation power and the opening of investigation procedure, which is closely related to the investigation process, and there are indeed illegal operations in criminal filing in practice, it is not only procedural necessity but also the requirement of judicial practice to supervise criminal filing. In addition, reviewing the cases transferred by the investigation organ in the process of investigation is not only the scope of responsibility of the procuratorial organ, but also an effective carrier and way to implement investigation and supervision. The examination of cases and the supervision of investigation activities are interrelated and cannot be absolutely separated.
(two) the object of investigation and supervision
Regarding the object of investigation and supervision, most people think that the object of investigation and supervision is public security organs; There are also views that the state security organs undertake part of the investigation tasks, so the investigation and supervision objects should include the state security organs in addition to the public security organs; There is also a view that procuratorial organs directly accept the cases they investigate and carry out investigation activities, so they should also carry out investigation and supervision on themselves. The author thinks that although in practice, the investigation and supervision object of procuratorial organs is mainly public security organs, in theory, all organs and departments with investigation power should be investigation and supervision objects, including public security organs, state security organs, customs smuggling crime investigation departments, supervision departments of procuratorial organs and self-investigation departments.
Second, the problems and defects of China's current criminal investigation and supervision mechanism
(A) the defects of criminal procedure legislation
1. The provisions on the content and scope of investigation supervision are not specific and clear enough, and lack of operability. China's Criminal Procedure Law and the Organic Law of People's Procuratorate both stipulate that procuratorial organs can supervise the legality of investigation activities, but this is only a principle provision, and the scope and specific content of supervision are not clear, such as which cases should be subject to investigation and supervision means and which cases can only be subject to procuratorial suggestions, which leads to the lack of operability of supervision, and then the degree of supervision and the degree of tempering justice with mercy are different, and the way of supervision is not standardized and difficult to unify. There are the following problems in practice: (1) the arbitrariness of supervision and non-supervision. Because the law is not clear about the situation of supervision, whether to supervise in case of situation often depends on the sense of responsibility and subjective understanding of the case-handling personnel; (2) The arbitrariness of supervision methods. According to the Criminal Procedure Law of the People's Procuratorate, the supervision methods of investigation activities include oral notice to correct and notice to correct violations, and the difference between them lies in the seriousness of the circumstances. However, there is no regulation on which cases are minor and which cases are serious, so there is great randomness in the choice of investigation and supervision methods; (3) Uncertainty of supervision cycle. The Rules of Criminal Procedure of the People's Procuratorate stipulates the procedure and time limit for the supervision of criminal filing, but it does not stipulate any time limit for the supervision of investigation activities, which may lead to the indefinite delay of the supervision of public security organs by procuratorial organs, and the public security organs cannot respond to the supervision of procuratorial organs in time. (4) the blindness of supervision effect. Because the law does not give the procuratorial organ a certain punishment right in the process of investigation and supervision, whether the procuratorial organ can achieve the supervision effect after supervision is always in a blind state. The existence of the above situation has seriously affected the seriousness and authority of the legal supervision power of procuratorial organs. Only through legislation or judicial interpretation can we clarify the specific operating rules and contents of investigation and supervision, provide a strong basis and guarantee for investigation and supervision, ensure the smooth implementation of investigation and supervision, and achieve the purpose and effect of supervision.
2. The law stipulates that public prosecution and public prosecution cooperate and restrict each other, which makes it difficult for procuratorial organs to give full play to their investigation and supervision functions. As China's Criminal Procedure Law stipulates that the relationship among the public, the procuratorate and the law is "division of responsibilities, mutual cooperation and mutual restraint", it shows that the public, the procuratorate and the law are in a parallel position when exercising their criminal functions, and each of them shares power, and their structures are not hierarchical, which determines that it is difficult for the procuratorate to go deep into the investigation activities of the public security organs and supervise the investigation activities; In addition, although the law stipulates that the procuratorial organ has the right of legal supervision, the public and the procuratorial organ are in a mutually restrictive relationship, and the supervision functions are staggered (for example, the Criminal Procedure Law gives the procuratorial organ the power to decide on arrest and at the same time gives the public security organ the power to change the arrest decision), which greatly weakens the legal supervision function of the procuratorial organ, leading to the loss of control of the investigation power in some aspects and the difficulty of investigation and supervision. For example, although the power to approve the arrest rests with the procuratorial organ, the public security organ can change the compulsory measures against the criminal suspect who has been arrested by the procuratorial organ without the consent of the procuratorial organ (only after the event). After the procuratorial organ finds out the situation, even if it supervises the behavior of the public security organ, it is only an ex post facto and non-mandatory supervision.
3. There is no power clause or responsibility clause in legislation to ensure the realization of supervision effect. Although China's Criminal Procedure Law stipulates that the procuratorial organ has the right to supervise the investigation behavior of the investigation organ, there is no corresponding clause to ensure the realization of the procuratorial organ's supervision right that the investigation organ does not accept the supervision of the procuratorial organ. For example, Article 87 of the Criminal Procedure Law stipulates: "If the people's procuratorate thinks that the public security organ does not file a case for investigation, or the victim thinks that the public security organ does not file a case for investigation, the people's procuratorate shall ask the public security organ to explain the reasons for not filing a case. If the people's procuratorate believes that the reason why the public security organ does not file a case cannot be established, it shall notify the public security organ to file a case, and the public security organ shall file a case after receiving the notice. " If the public security organ neither explains the reasons nor files a case, and still fails to file a case after repeated supervision by the procuratorial organ, the procuratorial organ will have no legal and effective means to ensure the realization of the supervision effect. The same is true for the supervision of investigation activities. After the procuratorial organ issued a notice to correct the violation, although it has been tracking supervision, it has always turned a blind eye to whether the supervision effect can be realized.
Problems in criminal justice
1. Insufficient understanding of the importance of investigation and supervision. If the defect in the legislation of investigation and supervision is the objective reason that leads to the unobvious effect of investigation and supervision, then the lack of understanding of the importance of investigation and supervision by some procuratorial organs is the important subjective reason. If some procuratorial organs consider the long-term cooperative relationship with the investigation organs, they would rather give up part of the investigation and supervision work and handle the relationship with the investigation organs well; Some take into account the defects in the legislation of investigation and supervision, the legal basis of supervision is insufficient, and there are many difficulties, resulting in fear of difficulties. These conditions have hindered the progress of investigation and supervision to varying degrees.
2. The supervision mode is lagging behind and passive, which makes it difficult to prevent and correct illegal acts in investigation in time. At present, the investigation supervision in practice is mainly in the form of post supervision, that is, oral or written supervision is given only after the illegal situation occurs in the investigation work of the investigation organ, and it is rare and difficult to carry out all-round dynamic supervision over the whole process of investigation activities. Moreover, the channel of supervision is mainly to find clues from the case materials submitted by the investigation organs, and the illegal situation in investigation is rarely reflected in the case materials. Even if it is reflected, by the time the procuratorate finds out, some times have changed, and it is difficult for supervision to achieve practical results.
3. Insufficient supervision of the parties involved in the investigation. In criminal investigation, to a great extent, it involves the restriction and deprivation of personal rights and other rights of criminal suspects, defendants and other citizens. In order to solve the case quickly, the national law gives the investigation organ greater investigation power, but relatively speaking, the protection of the legitimate rights and interests of the parties involved is relatively weak. In practice, due to the lack of legal awareness of the parties, when the investigation infringes on their legal rights (such as illegal evidence collection or extorting a confession by torture, etc.). ), few people exercise their right of supervision and put forward a declaration against them.
4. The investigation and supervision, public prosecution, procuratorial supervision and other departments of procuratorial organs lack necessary communication in supervision and have not formed a complete supervision system. In some places, due to the lack of contact and communication between internal departments, procuratorial organs are out of touch with each other and do not exchange information in time from the overall situation, resulting in inadequate supervision or ineffective supervision.
Third, suggestions to improve the supervision mechanism of criminal investigation in China.
(A) improve legislation
The contents of investigation and supervision in China's Criminal Procedure Law are mainly embodied in Articles 76, 87 and 137. Article 76 stipulates that if the people's procuratorate finds that the investigation activities of the public security organ are illegal in the process of examining and approving the arrest, it shall notify the public security organ to correct it, and the public security organ shall notify the people's procuratorate of the correction. Article 87 stipulates that if the people's procuratorate thinks that the public security organ does not file a case for investigation, or if the victim thinks that the public security organ does not file a case for investigation, the people's procuratorate shall ask the public security organ to explain the reasons for not filing a case. If the people's procuratorate believes that the reason why the public security organ does not file a case cannot be established, it shall notify the public security organ to file a case, and the public security organ shall file a case after receiving the notice. Article 137 stipulates that when examining a case, the people's procuratorate must find out whether the investigation activity is legal. The above provisions are the legal basis for procuratorial organs to carry out investigation and supervision. In addition, Articles 37 1 to 390 of the Criminal Procedure Rules of the People's Procuratorate stipulate the contents, methods and procedures of supervision of criminal investigation activities. However, in practice, there is still a passive situation in which supervision has no legal basis or supervision cannot achieve results. Therefore, the author suggests that the following aspects should be stipulated in legislation.
1. Establish the procuratorial organs' right to file and withdraw criminal cases in the process of investigation and supervision, and the right to directly correct illegal investigations. According to the Criminal Procedure Law and the Rules of Criminal Procedure of the People's Procuratorate, in the process of investigation and supervision, the procuratorial organ has only the power to suggest that the investigation organ file a case or suggest to correct the illegal investigation, but has no direct right to punish and correct. Article 87 of the Criminal Procedure Law stipulates that the public security organ shall file a case after receiving the notice of filing a case from the procuratorial organ. However, in practice, due to different understandings of the facts, evidence and nature of the case, if the public security organ refuses to file a case after receiving the notice, the procuratorial organ can only urge it by issuing a notice to correct the violation. In the case that the public security organs insist on their own opinions and procrastinate, the procuratorial organs have no more effective legal channels to supervise the cases. The same is true for the supervision of investigation activities. Therefore, the author suggests that in the criminal procedure law, it is necessary to establish the procuratorial organs' right to directly file a case and withdraw a lawsuit in the process of investigation and supervision, as well as the right to directly correct illegal investigation. For example, after Article 87 of the Criminal Procedure Law, the content of "If the public security organ still refuses to file a case, the procuratorial organ can directly decide to file a case" is added to ensure the investigation and supervision function of the procuratorial organ. In the investigation stage, the relationship between procuratorial organs and investigation organs should be a relationship of supervision and guidance. Through the effective supervision and guidance of this judicial control means, the investigation power of the investigation organ is always exercised within the scope prescribed by law. Procuratorial organs should always stand in a just legal position and provide substantive legal protection for defendants and victims. [3] The establishment of the final filing right of the procuratorial organ in the criminal filing procedure is an effective control and guidance of the investigation behavior, which can fully reflect the legal supervision function of the procuratorial organ.
2. In legislation or judicial interpretation, the principle, subject, object, scope, content, method and time limit of investigation and supervision should be made clear. (1) principle. The principle of investigation and supervision is the soul and focus of investigation and supervision, and it is of great significance to make it clear. The author believes that the investigation and supervision work should follow the following three principles: First, the legal principle. Investigation supervision is a legal supervision act carried out by procuratorial organs according to law, and it is the embodiment of procuratorial function and judicial function. Therefore, when conducting investigation and supervision, procuratorial organs must follow the provisions of laws and judicial interpretations, and must follow the basic principles stipulated in the Criminal Procedure Law, and cannot supervise beyond the law. Second, the principle of fairness and efficiency. Justice and efficiency are the eternal theme and goal of judicial behavior. The goal of investigation and supervision is the same. Through supervision, not only the investigation activities are carried out according to law, but also the cases are handled fairly by the entity. In addition, the emphasis on the efficiency of investigation and supervision aims to correct illegal investigations in time, pursue fairness and justice to a greater extent, and reflect the effect of legal supervision by procuratorial organs. Third, the guiding principle of cooperation. Supporting and cooperating with the investigation organs is the requirement of the basic principles of China's criminal procedure law, and the procuratorial organs guide the investigation organs to collect evidence and put forward investigation suggestions when necessary for the same litigation purpose. The procuratorial guidance investigation mode can be said to be an ideal investigation supervision mode. (2) subject and object. The subject of investigation and supervision is procuratorial organs, and the object of supervision is all organs and departments with investigation power. Only when the law clearly stipulates the subject and object of supervision (especially the object), the investigation and supervision of procuratorial organs will be more targeted and dynamic. (3) Scope and content. The scope of investigation supervision mainly includes the supervision of the legality of criminal filing, the supervision of investigation activities and the review of cases transferred by investigation organs during investigation. Using the law to stipulate the content and scope of investigation and supervision can not only make some prosecutors overcome their fear of difficulties, but also make it more legal for procuratorial organs to carry out investigation and supervision. (4) Method and time limit. It is necessary to clearly stipulate the specific means and methods of supervision by procuratorial organs in the law, and stipulate the time limit of supervision by procuratorial organs and the time limit of feedback and correction supervision by investigative organs and departments, which is not only conducive to the realization of supervision effect, but also conducive to avoiding the abuse of investigation supervision power by procuratorial organs.
(two) to establish a reasonable relationship with the public security organs, cooperate with each other and guide the investigation.
The investigation and supervision system involves the work of prosecutors and prosecutors. How to reasonably locate the relationship between prosecutors and prosecutors in investigation and supervision is the key to whether the investigation and supervision function of procuratorial organs can play its due role. Judging from the relationship between prosecutors and police in some countries in the world, there are generally two modes: ordered investigation and supervised investigation, while the relationship between prosecutors and police in China is more reflected in an equal restrictive relationship, with more constraints than cooperation. With the deepening of the understanding of the function of investigation and supervision and the change of working concept, strengthening supervision has become a major focus of our work. The purpose of investigation supervision is to correct and reduce the illegal acts of investigation organs in investigation and guide the investigation work along the track of legalization and standardization. However, the traditional post supervision method can't completely prevent and put an end to illegal phenomena. At present, it may be a reasonable way to change the way of investigation supervision by establishing a relationship with public security organs to cooperate with each other and guide investigation. It can break the previous pattern that investigation supervision is only limited to static and post supervision correction, but dynamically supervise and guide the whole process of investigation activities, and change passivity into initiative, thus preventing illegal acts from happening in the investigation process to a certain extent. Establishing this reasonable relationship is not only in line with the purpose of criminal proceedings in China, but also the need of judicial practice. The author believes that the focus of "mutual cooperation and guiding investigation" is guidance, which is determined by the legal supervision function of procuratorial organs. "Guiding investigation" should include two aspects: first, guiding in the form of supervision, with the purpose of guiding public security organs to standardize the investigation activities of filing a case, ensuring the legal proceedings and protecting the legitimate rights and interests of the parties. The specific contents include (1) criminal filing and supervision without filing; (two) to supervise and correct the illegal decision, implementation and change of compulsory measures during the investigation; (3) Supervising and correcting illegal situations that infringe upon the rights and interests of the parties, such as extorting confessions by torture; (four) to supervise and correct the violations of the statutory detention and handling time limit and the wrong withdrawal of the case during the investigation. The second is to guide the investigation of specific cases. The main contents include (1) introducing the specific investigation activities of public security organs in time, participating in the discussion of major cases, and putting forward suggestions on collecting and fixing evidence; (two) to supervise the illegal evidence collection in the investigation and put forward rectification opinions in a timely manner; (3) Do a good job in providing court evidence for withdrawing the case and supplementing the investigation outline and arresting the case, and guide the investigation organ to obtain evidence when supplementing the evidence.
(3) Improve the system and implement measures.
Systems and measures are an effective guarantee for continuously strengthening investigation and supervision. At present, to carry out in-depth investigation and supervision, we must do the following work:
1. Procuratorial organs should establish a practical and concrete system of timely transfer for investigation with public security organs. Timely transfer of investigation is an important entry point for procuratorial guidance and investigation, and an important link for doing a good job in investigation supervision. Because the law does not clearly stipulate the timely intermediary investigation of procuratorial organs, it is necessary for procuratorial organs to establish an operable timely intermediary investigation system with public security organs. (1) Clarify the scope of intermediary investigation activities in a timely manner, mainly major and difficult cases, as well as some cases that have great social influence and are related to crimes committed by gangs involved in black and evil; (2) Clarify the work content of intermediary investigation activities of procuratorial organs, mainly to understand the case, participate in the investigation, discussion and analysis of the case, make suggestions for the investigation organs to collect and fix evidence, perform the supervision function, and correct the illegal acts in the investigation activities in time; (3) Clear the principles, procedures and time of timely referral investigation.
2. All departments within the procuratorial organs should cooperate with each other to form a joint force of supervision. Procuratorial organs' investigation and supervision, public prosecution, procuratorial supervision, applicable control, duty crime investigation and other departments should always contact and communicate, timely inform the clues and information of investigation and supervision, and cooperate with each other in their work to form a joint force of supervision. For example, the procuratorial department and the public prosecution department can provide the clues of filing supervision found in letters and visits and handling cases to the investigation and supervision department, and the investigation and supervision department will decide whether to file supervision after review; Procuratorial supervision, public prosecution and other departments can supervise the extended detention, illegal evidence collection, torture and other acts found in the investigation process, and can also transfer clues to the investigation and supervision department for supervision; The investigation and supervision department can also transfer the criminal clues of the investigators who have read Jobs to the investigation department for investigation. All departments should also establish a certain system of clues, information contact, registration and feedback, and communicate regularly. After grasping the information, the investigation and supervision departments should supervise in time to form a joint force of supervision, so that the investigation and supervision work can embark on a virtuous circle.
3. Establish a tracking and supervision system. (1) Establish a follow-up supervision system for criminal cases. Procuratorial organs should follow up and supervise the cases that the public security organs should file but not file, so as to prevent the cases from not being investigated or closed.
First of all, the investigation and supervision department should establish a dynamic flow chart of filing supervision, and there should be a special person responsible for regularly tracking and supervising the supervised cases and grasping the information in time. Secondly, prosecutors should contact and communicate with public security investigators, keep abreast of the investigation and handling of supervised cases, put forward suggestions for investigation and evidence collection when necessary, and guide and cooperate with public security organs in detecting cases. (2) Establish a follow-up supervision system for examining arrest cases. Procuratorial organs follow up cases of approved arrest and unapproved arrest, and supervise the handling and execution of cases of arrested and unapproved arrest by public security organs. Firstly, the supervision flow chart of investigation activities is established, and the supervision of the execution of arrest cases, the supervision of changing compulsory measures after arrest, and the supervision of non-arrest cases are recorded in the form in time to grasp the situation. Secondly, standardize the handling and supervision procedures of non-arrest cases and investigation cases. Because the law does not clearly stipulate the handling procedures and supervision procedures of cases without arrest and investigation, it is necessary to formulate corresponding systems to standardize them: (1) stipulate the relative time limit for public security organs to handle cases without arrest and investigation; To stipulate the supervisory duties of prosecutors during the withdrawal of charges; To stipulate the supervision procedures of procuratorial organs for withdrawing investigation cases.
References:
1, Principles of Criminal Trial, Chen Ruihua, 1997 Peking University Publishing House;
2. On the Purpose of Criminal Procedure, Song, 1995 China People's Public Security University Press;
3. Provisions on the People's Supervisor System for People's Procuratorates to Directly Accept Investigation Cases (Trial), the Supreme People's Procuratorate;
4. The Concept of Criminal Procedure, translated by Zuo Weimin and Zhou Changjun, Law Press;
5. Basic Principles and Basic Course of Criminal Procedure Law, Qiu, People's Publishing House, 2005;
6. Criminal Procedure Law, Sun Changyong, domestic literature in 2004.