"abstraction"

In the modern criminal litigation mechanism, the investigation function is a litigation function that is relatively independent of the accusation function and the trial function. Historically, the formation of independent investigation function has experienced a development process of differentiation and integration. From the content, modern investigation functions include stopping crimes, finding out the case, preserving evidence and suspects.

"Keyword" function; Litigation function; Investigation; criminal proceedings

The word "function" is a functionalist term used to describe "the role (or function) played by a system and behavior type in society and its relationship with other social manifestations." [1] In political science, "function" is closely related to the division of state power. It is often used to refer to the tasks and responsibilities of an authority in the whole national political system, such as legislative power, administrative power and judicial power and their contents, and is often called the three major functions of the state. In the field of criminal proceedings, people often use the word "function" to describe the roles played by different subjects or "roles" in criminal proceedings. ① "The function of criminal litigation refers to the way in which participants conduct different litigation activities according to their respective functions and powers and the different results arising therefrom." [2] The reason why criminal proceedings are divided into litigation functions is because criminal proceedings, as a national activity, involve the distribution and combination of national criminal judicial power (including judicial power, accusation power and investigation power in a broad sense), and form different behavior patterns, obligations and rights around the distribution and combination of power, that is, roles. The result of describing the roles or functions played by these roles in criminal proceedings and the relationship between them is to form different lawsuits. However, criminal proceedings, after all, are not an area where state power acts alone. As a conflict resolution mechanism, criminal proceedings should solve the conflict between China and the defendant in criminal law and criminal procedure law. In criminal proceedings, the exercise of the individual rights of the defendant (and criminal suspect) also plays an important role in the outcome of criminal proceedings, and the defendant and his rights constitute the main role in the structure of criminal proceedings. Especially with the establishment of the democratic concept of modern criminal procedure and the enhancement of people-oriented color, the defense right of criminal suspects and defendants can get more attention and attention, and people begin to treat defense as an independent function comparable to the investigation control function of investigation control organs and the trial function of judicial organs. In this way, the modern criminal procedure has initially formed a litigation structure based on the three major litigation functions of control, defense and trial. "The separation of prosecution and trial, the defendant has the right to defend himself, forming the basic pattern of modern criminal proceedings, leading to the existence of three basic powers: control, defense and trial." [3] However, the above conclusion is only the result of a horizontal (mainly from the perspective of trial) investigation on the structure of criminal proceedings, which actually reflects the structural characteristics of the criminal trial stage, and does not involve the vertical structure of criminal proceedings, that is, it is not investigated and analyzed from the perspective of criminal proceedings, because from a vertical perspective, the litigation links that touch criminal cases should be investigation first, prosecution and trial later. If the meaning of investigation is absorbed by the accusation function in the horizontal structure of criminal procedure, can investigation be regarded as a relatively independent litigation function from the vertical structure of criminal procedure? Different answers to this question will greatly affect the design and operation of investigation procedures, so it has particularly important theoretical value. Starting with defining the position of investigation function, this paper discusses the emergence and development of investigation function and analyzes its unique connotation.

First, independence or subordination: the status of investigation function

At present, there are quite different theories about the division of litigation functions in China. Typical viewpoints are: three functions, four functions, five functions and seven functions.

(1) "Three major functions". According to the theory of "three functions", criminal procedure consists of three basic functions: accusation, defense and trial. The function of the indictment is to point to the court to prosecute and appear in court to support the indictment, and to demand that the defendant be investigated for criminal responsibility for his criminal acts, which shall be exercised by the state procuratorate and the victim; Compared with the accusation function, the defense function refers to the presentation of facts and reasons that are beneficial to the defendant and safeguard the defendant's legitimate rights and interests, which are exercised by the criminal suspect and the defendant with the assistance of the defender; The trial function refers to determining whether the defendant has committed the alleged crime, whether he should be sentenced and what kind of punishment he should be sentenced through trial, which is exercised by the court. The three basic functions of accusation, defense and trial are interrelated and mutually restricted, which constitute the main content of criminal proceedings. The theory of three functions is the general theory of traditional litigation theory. According to this view, investigation is a necessary preparation for public prosecution and an integral part of litigation activities. Without investigation, it is impossible to determine whether to prosecute. Therefore, in a broad sense, investigation can be regarded as exercising the function of accusation. [4] Accordingly, the investigation function is subordinate to the accusation function, and it is not independent in itself. The theory of "three functions" is the embodiment of the idea of trial centralism, and its investigation and analysis of litigation structure is mainly the result of horizontal investigation of litigation structure from the perspective of trial procedure.

(2) "Four Functions Theory". On the basis of the traditional theory of three functions, some scholars put forward that the functions of criminal procedure should be divided into four functions: accusation, defense, trial and supervision, commonly known as the theory of four functions. This view holds that the theory of three functions can reflect the basic characteristics of traditional criminal proceedings, but it is not suitable for the actual situation of criminal proceedings in China, because China's procuratorial organs have the right to supervise the litigation activities of public security organs, courts, prisons and other penalty enforcement organs in addition to the functions of examining and prosecuting, initiating and supporting public prosecutions, but the latter function of procuratorial organs cannot be explained, which is the theoretical defect of the theory of three functions. This view holds that a theory of litigation function must be able to reflect the characteristics of China's criminal litigation system. If the legal supervision function is not listed as the category of criminal procedure function, it will be impossible to accurately explain the actual situation of legal supervision in criminal procedure in China. Therefore, according to the provisions of China's criminal procedure legislation, in addition to the traditional three functions, the function of "legal supervision" should be added, and it is considered that the function of legal supervision is the key to distinguish the theory of litigation function in China from that in foreign countries. [5] In fact, the four functions are only partially revised according to the unique situation of the allocation of litigation rights (interests) in China, but the basic theoretical basis of their classification still comes from the three functions, and they still adhere to the idea of conducting a horizontal investigation on the structure of criminal proceedings.

(3) "Five Functions Theory". On the basis of the traditional theory of three functions, some scholars regard supervision and assistance to judicial organs as one of the functions of criminal proceedings, thus forming the theory of five functions. This view holds that a scientific theory of litigation function should summarize the functions and functions of all state officials and individuals involved in litigation, so as to accurately and comprehensively reflect the real situation of the criminal litigation system. Accordingly, this view holds that in addition to legal supervision, the role of witnesses and experts in litigation should also be listed as a litigation function, that is, assisting the judiciary. Because witnesses and expert witnesses are generally not interested in the outcome of the proceedings, they mainly stand on the objective and fair position of criminal proceedings, assist the judicial organs in litigation activities, discover the truth and make correct judgment conclusions. In fact, they shoulder the indispensable function of assisting the judiciary in criminal proceedings. [6] The theory of five functions advocates a broad view of litigation functions, which lists the roles and functions of other participants in criminal proceedings as independent functional forms except the traditional roles of procuratorates, courts and defendants.

(4) "Seven Functions Theory". This view holds that the functions of criminal proceedings should include investigation, accusation, defense, trial, execution, judicial assistance and litigation supervision. This view holds that the traditional "three-function theory" is based on the narrow sense of criminal procedure and has its theoretical defects. The following factors should be considered in determining and dividing the criminal litigation function: First, due to the increasingly fine division of labor in the judicial field, the influence of the theory of separation of powers, the development of human rights and the need to combat crimes, the litigation function is constantly divided, developed and integrated, and the traditional trial-centered theory has been replaced by the litigation stage theory. The procedures and stages of criminal proceedings are increasing and extending forward. Therefore, the division of litigation functions should reflect and show all the litigation activities of all subjects who preside over or participate in litigation activities from filing a lawsuit to executing various litigation procedures, rather than just dividing functions from one or several stages of litigation activities in the criminal litigation system. Second, whether the activities of organs or participants in litigation can be summarized as independent functions should be comprehensively investigated from their functions, functions, independent rights and obligations and corresponding procedural guarantees. If their functions are specific and cannot be accommodated and replaced by other functions, then they should be considered as an independent function. Thirdly, an important feature of China's judicial system is that procuratorial organs are not only public prosecution organs, but also supervise the legality of criminal proceedings. Therefore, the functions of criminal proceedings should include the functions of litigation supervision, execution and judicial assistance. [7]

According to different theories of litigation function, the understanding of the nature of investigation function will be different. Under the theoretical framework of "three-function theory" and "four-function theory" including "five-function theory", there is no theoretical possibility of independent existence of investigation function, and investigation function is regarded as a vassal of accusation function and completely absorbed by accusation function. On the contrary, according to the "Seven Functions Theory", the independence of the investigation function has been fully affirmed and regarded as a complete litigation function independent of the appeal function. Here, it is of no theoretical value and practical significance to argue which viewpoint is right and which viewpoint is wrong, because criminal procedure, as a complex social function system, has the possibility of establishing various classification research systems. The above-mentioned different theories about the function of litigation are actually the conclusions drawn from the classified research on the function of criminal litigation according to different standards, which can be said to be reasonable and has its theoretical rationality. But the crux of the problem lies in which classification standard is more scientific and can better reflect the essential characteristics and laws of criminal procedure structure. We believe that from the perspective of structure-functionalism, to measure the independence of a social functional system, we should conduct a comprehensive investigation from the functions and functions undertaken by the system. If its functional content is specific and cannot be accommodated and replaced by other functional systems, then it should be regarded as an independent functional system. Based on this consideration, we believe that the investigation function should be a relatively independent litigation function. Specifically:

(1) The functions of prosecution, defense and trial cannot cover and refer to all the functions of criminal proceedings. Like most other litigation theories, the theory of criminal litigation function is imported. From the perspective of relevant theoretical pedigree, the function of criminal procedure is a concept used by procedural law scholars in civil law countries in the comparative study of modern criminal procedure and ex officio litigation, and the main purpose of putting forward the concept of "criminal procedure function" is to derive the theory of "functional distinction" (or "functional separation") in litigation. According to foreign scholars, "the distinction of litigation function seems to be one of the basic differences between inquisitorial procedure and plea procedure". [8] In the inquisitorial procedure, there is no distinction between the three litigation functions of accusation, defense and judgment. Accusations and judgments are borne by the same judicial body, and defendants have few opportunities to defend themselves, so the defense function does not actually exist. And "in the prosecution procedure, it is necessary to separate these functions. The appeal function is undertaken by the prosecutor, the defense function belongs to the defendant and his defense lawyer, and the referee is a court function independent of either of them. " [9] French scholar caston. Stefani believes that modern criminal procedure is based on the principle of "separation of functions". The so-called separation of functions means that "the judicial personnel (prosecutors) responsible for prosecution are completely excluded from the trial court; At the same time, the same person may not exercise both pre-trial and trial functions in the same case. " [10] Japanese scholar Shouyi Taguchi also believes that from the perspective of historical development, the premise of modern criminal procedure law is obviously the structure of prosecution and defense proceedings. Starting with the structure of the prosecution and defense litigation, we can clarify several basic principles of the current law. One of them is the adoption of national prosecution, and the litigation procedure begins with the prosecution behavior of the prosecutor. Therefore, the functions of judges and prosecutors are separated. Because the judge is not a prosecutor, the facts that have not been prosecuted cannot be tried (the principle of not prosecuting and ignoring), and the object of trial is only the defendant. [1 1] It can be seen that the core of the theory of "division of functions" in litigation is the division of functions of litigation subjects such as procuratorates, courts and defendants in criminal proceedings. The concept of "criminal litigation functions" has been used to describe the different functions and functions of litigation subjects such as procuratorates, courts and defendants in criminal proceedings since it came into being. The criminal litigation function essentially refers to the procuratorate, the court and the defendant. Therefore, what we usually call "criminal litigation function" actually refers to the function of the subject of criminal litigation, that is, the basic function of criminal litigation, and the possibility of positioning other litigation functions besides the three functions of prosecution, defense and trial cannot be ruled out. For example, the judicial assistance functions of witnesses, experts and other litigation participants put forward by the "five-function theory" and "seven-function theory" also exist objectively in criminal proceedings. It cannot be said that in criminal proceedings, except. This is like discussing the functions of a modern constitutional state. The prevailing theory is "three powers", that is, state functions are divided into three functions: legislation, administration and justice. But in fact, the "three powers" can't cover all the functions of the state, and it doesn't rule out the possibility of positioning other state functions outside the three powers.

At the same time, as some scholars have pointed out, the traditional theory of the three functions of prosecution, defense and trial has a strong color of "trial-centeredness", which is actually the result of a horizontal investigation of the structure of criminal proceedings (mainly from the perspective of trial). It mainly reflects the structural characteristics of the criminal trial stage and cannot be used to oppose our changing our thinking and angle, and to classify and investigate criminal proceedings from the vertical structure of criminal proceedings, that is, from the perspective of criminal proceedings, but from the perspective of criminal proceedings. Although the investigation procedure and the trial procedure have the same litigation characteristics, that is, the investigation procedure is also a structured procedure, the configuration of litigation functions in the investigation procedure is obviously different from that in the trial stage. In the investigation procedure, the court exercises the trial function through judicial review, but the trial function here is not a substantive punishment function, but a procedural supervision function. The judicial review of the court in the investigation is not to determine whether the defendant has committed the alleged crime and whether he should be punished, but to judge whether the compulsory investigation of the criminal suspect by the investigation organ is appropriate and whether it is necessary to provide judicial relief to citizens. At the same time, although the procuratorial organ also participates in the investigation, it does not exercise the accusation function in the investigation procedure. The role of the procuratorate in the investigation procedure is not to sue the court, appear in court to support the accusation and demand that the defendant be investigated for criminal responsibility, but to stop the crime, find out the crime, preserve the evidence and preserve the person of the criminal suspect. Therefore, the procuratorial organ exercises the investigation function rather than the accusation function in the investigation procedure, and the function of the prosecutor in the investigation stage is the investigator rather than the prosecutor. Japanese scholar Sukeyoshi Taguchi divides the prosecutor's authority in litigation into four categories: (1) investigation authority, which is a function with police characteristics; (2) the right to initiate public prosecution, which is a function with the characteristics of a judge; (3) the right to present evidence and state opinions, which is a function with the characteristics of lawyers; (4) directing the judicial execution organs, with the characteristics of correcting and protecting the staff. [12] It can be seen that although prosecutors play an important role in all stages of criminal proceedings, in the stage of investigation procedure, the functions and powers of procuratorates and prosecutors are mainly investigation functions rather than appeal functions, and they exercise investigation functions similar to those of police, rather than appeal functions of judicial personnel. Therefore, from the stage of investigation procedure, investigation function, defense function and trial function constitute the basic litigation function that supports the operation of investigation procedure, and investigation function is an independent litigation function.

(2) The appeal function cannot fully contain and absorb the investigation function. An important point of the traditional "three-function theory" is that investigation is only to prepare for filing a complaint. Therefore, the investigation function is not independent, but only subordinate or subservient to the complaint function. However, we think this statement is controversial. Although in a modern country ruled by law, the investigation function and the appeal function are often undertaken by the procuratorate alone (the police are only regarded as the auxiliary organs of the procuratorate), which leads to the phenomenon of overlapping subjects, but the overlapping subjects cannot erase the relative independence of the two litigation functions in purpose and content. Specifically, first of all, from the purpose, the purpose of investigation is not to prepare for public prosecution, but to determine whether there is suspicion, and then decide whether to prosecute. Therefore, the purpose of investigation is independent of public prosecution. "The purpose of investigation is to find out whether there is a criminal suspect and decide whether to prosecute, so as to prepare for prosecution. For many cases of confession retraction, investigation and defense activities are carried out in order not to prosecute; For major cases and cases of denying crimes, investigation activities are carried out on the premise of trial from the beginning. When investigating, we should consider two aspects: deciding to prosecute, not prosecuting and preparing for trial, that is, investigation has two purposes. " [13] Since the purpose of investigation is not accusation, the investigation function cannot be regarded as a vassal of the accusation function; Since the purpose of investigation is independent, as the realization of this purpose, the investigation function itself should be independent; Secondly, judging from the structure of the investigation procedure, the structure of the investigation procedure is independent of the appeal procedure. Any independent system has two aspects: structure and function. Structure represents the structure of the system, and function represents behavior or function, which are closely related. Structure is the unchangeable aspect of the system, function is the behavior of the system structure, and structure determines function, which is the carrier of behavior. Therefore, an independent structure must have independent functions. Although there is a strong correlation between investigation procedure and appeal procedure, investigation procedure, as a relatively closed institutionalized system composed of criminal suspects, police, prosecutors, judges and victims, is still an independent procedural structure with its own independent functional system (this functional system consists of investigation function, defense function and trial function). Thirdly, from the content of investigation function, there is a great difference between investigation function and accusation function. The functions of accusation specifically include the following powers: initiating public prosecution (or not), supporting public prosecution, changing public prosecution and protesting. These powers are all related to the right of action, which is essentially a kind of disposition claim. The investigation functions include the following powers: stopping crimes, identifying crimes, preserving evidence, and preserving criminal suspects. Judging from the content of investigation function, only the functions of preserving evidence and criminal suspects have the nature of preparing charges, while the functions of stopping and discovering crimes have relatively independent significance, which is inseparable from the nature and characteristics of investigation power, which is not entirely judicial power, but administrative power. It can be seen that there are some differences between the investigation function and the complaint function, both in terms of purpose and power content. The appeal function cannot completely contain and absorb the investigation function, and the investigation function remains relatively independent.

Second, differentiation and integration: the formation of investigation function

In the view of modernization theory, the process of social development is the process of gradual differentiation of structure and function specialization. An important difference between traditional society and modern society lies in the degree of structural differentiation and functional specialization. The traditional agricultural society is characterized by the stabilization of local groups, the limitation of mobile space, the simplification of occupational differentiation and the "universality" of low differences. In modern industrial society, there are many individual roles and organizational roles, and each role often has one function or even multiple functions. The important characteristics of modern society and modern government are the high differentiation of various roles (including individual roles and organizational roles) in social structure and the specialization of their respective functions. The state machine and its functions as a whole are also highly differentiated, with numerous institutions and different functions. [15] The change and development of litigation system is essentially a process of structural differentiation and functional specialization with the development of society. Historically, the formation of independent investigation function is the result of the gradual differentiation and integration of litigation function and structure.

Comrade, let's see if it's right. I will try my best.

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