* * * People's Republic of China (PRC) prosecutors have their own representatives in criminal trial courts at all levels. * * * One of the important functions and powers of public prosecutors in People's Republic of China (PRC) is to take tracing measures against illegal and criminal activities of themselves or others. To this end, prosecutors in People's Republic of China (PRC) enjoy all the powers and privileges granted to the judicial police by law, and have the right to direct the judicial police or all their activities within the jurisdiction of their courts. The pre-trial judge is another important part of the investigation subject. According to French law, after the suspect is arrested, the judicial police will hand over the case to the pre-trial judge, who will review the evidence and interrogate the suspect. When necessary, the pre-trial judge will personally inspect the scene and conduct investigation and evidence collection. It is particularly important to note here that according to the provisions of the French Criminal Procedure Law, when the public prosecutor arrives at the scene, the bailiff will be dismissed; When the examining magistrate arrives at the scene, the prosecutor in People's Republic of China (PRC) will be relieved of his post.
From the above, it can be seen that French prosecutors and pre-trial judges, especially pre-trial judges, have higher status in investigation activities than judicial police. It can be said that it is an important feature of the French investigation system that the prosecutors or investigating judges of the Republic of China directly lead and direct the investigation activities.
The concept of pre-trial in France is different from that in China. The investigation power of the French investigating judge is greater and less restricted, which can also be regarded as another important feature of the French investigation system.
Through the investigation of French investigators, we deeply feel that French investigators are very professional, and it is difficult for them to understand the practice of rewarding meritorious personnel (especially material rewards) in China. They don't have any material rewards except their normal wages. Their purpose is to fight for France. We are deeply touched by this.
The professional quality of French investigators is also generally high, which can be proved by the detection rate of criminal cases in France. Taking homicide cases as an example, the homicide detection rates in Nice and Welchung cities we have visited have reached 100%, which fully shows that the investigation activities in France are efficient and the quality of investigators is good.
Of course, we also notice that the power of the subject of investigation in France is relatively large, and it lacks a certain restriction mechanism, which is mainly aimed at the investigation power of the subject of investigation in common law countries. French police implement vertical leadership, although they are led and supervised by prosecutors and investigating judges in the Republic of China, they still enjoy greater investigation power; French prosecutors and examining magistrates have greater investigative powers. Because of this, the abuse of power by the investigation subject is objective, and illegal evidence collection such as extorting confessions by torture also occurs from time to time. Therefore, the human rights situation in French judicial activities has been repeatedly criticized by the European Commission of Human Rights. Investigation measures refer to the investigation methods adopted by the subject of investigation. Generally speaking, investigation methods can be divided into public methods and secret methods. The main methods used by French respondents in their investigation activities are:
(1) Field investigation. After receiving the report, the judicial police shall immediately notify the prosecutor and go to the scene for investigation and take necessary on-site protection measures. [ 1](P 195)
When conducting on-site investigation, the judicial police should protect and extract all traces and articles that may be related to crime; All articles suspected of being criminal tools and articles related to the criminal results should be confiscated; If the suspect is present, he shall be ordered to identify the seized items. The judicial police shall, in accordance with the provisions, make a record of on-site investigation and sign each page of the record.
When the prosecutor comes to the scene, the prosecutor is responsible for the on-site investigation; Prosecutors can carry out exploration activities in person, or they can let the judicial police carry out exploration activities.
After the pre-trial judge is present, the on-site investigation shall be undertaken by the pre-trial judge; The investigating judge may investigate the crime scene by himself or by the judicial police.
Before the end of the on-site investigation and related investigation activities, the judicial police have the right to prohibit the on-site personnel from leaving the scene.
(2) Search and seizure. In France, judicial police, prosecutors and investigating judges have the right to search places where criminal evidence may be hidden during the investigation of cases, and have the right to seize items found in the search that may be related to crimes. When the judicial police need to seize articles related to crimes, they have the right to search the residence of the relevant personnel. When searching the residence, the owner shall be present; If the owner cannot be present, his agent shall be present; If there is no agent present, the judicial police should choose two witnesses to be present. Documents and articles seized by the judicial police during the search must be made and sealed on the spot, and the seized articles and documents can only be kept as evidence with the consent of the prosecutor. The judicial police shall make a search record, and the searchers and witnesses present shall sign the record; If the witness refuses to sign, it shall be noted in the record.
When necessary, the prosecutor and the examining magistrate may conduct the search in person or instruct the judicial police to conduct the search.
(3) ask. The defendant shall not be present when questioning witnesses; Except/kloc-witnesses under the age of 0/6, other witnesses have the obligation to take an oath before testifying; Criminal suspects and guilty persons should not be questioned as witnesses to ensure their right to get help from defense lawyers; The defendant in an incidental civil action may refuse to testify, and the investigator shall inform him of his right to refuse to testify before interrogation. When questioning witnesses, a record of inquiry shall be made; The witness shall consult the record or read it to the witness; Each page of the transcript shall be signed by the inquirer, the clerk and the witness; The addition and modification of the record shall also be signed by the above-mentioned personnel; If the witness is unable or unwilling to sign, it shall be noted in the record.
(4) detention. Due to the need of investigation, the judicial police may detain people who leave the crime scene without consent before the end of on-site investigation activities; The criminal suspect who may be sentenced to more than two years' imprisonment under judicial supervision is not enough to ensure the smooth investigation and maintain social order; In addition, the defendant who intentionally fails to perform the obligation of judicial supervision can also be detained.
(5) Interrogating the defendant. At the beginning of interrogation, the interrogator shall inform the defendant of the alleged crime, as well as his right not to confess and the right of lawyer to defend; If the defendant does not choose a defense lawyer and asks to choose a defense lawyer, the pre-trial judge shall appoint one for him.
24 hours before the start of interrogation, the interrogator shall send the relevant case files to the defendant's defender for future reference.
(6) summoning. For the current felony case, if the investigating judge has not accepted it, the prosecutor in People's Republic of China (PRC) may issue a summons to any criminal suspect, and shall immediately interrogate the summoned person. If the summoned person is accompanied by a defender, he must be interrogated in the presence of a defender.
(7) arrest. In France, the arrest is decided by the investigating judge after listening to the opinions of the prosecutor and executed by the judicial police. The target of arrest is the defendant who can be sentenced to imprisonment for at least a misdemeanor. When making an arrest, the judicial police shall show the arrested person an arrest warrant and give him a copy. The arrest warrant shall indicate the identity of the arrested person, the alleged crime and the date of issuance, and shall be signed and sealed by the examining magistrate. Force can be used when arresting to ensure the implementation of the arrest.
(8) Telecommunications interception. In order to meet the needs of investigation, the pre-trial judge intercepts, registers and transcribes the posts and telecommunications of criminal suspects who may be sentenced to more than two years in prison. When intercepting telecommunications, there must be an interception decision, which should specify the charges causing interception and the interception period. The examining magistrate or his authorized bailiff shall record each interception and registration.
(9) Judicial control. If the person under inspection may be sentenced to more than imprisonment, the pre-trial judge may decide to put him under judicial control. The main meaning of judicial control means that the pre-trial judge can force the accused to abide by one or more of the provisions of 16 listed in the French criminal procedure law, which is a kind of investigation measure that partially restricts the personal freedom of the accused.
(10) commissioned investigation. In France, in the process of formal investigation, the pre-trial judge may entrust the court or other judges within the jurisdiction of the court, the pre-trial judge and the judicial police to carry out necessary investigations, which is called entrusted investigation.
When the pre-trial judge entrusts an investigation, he shall issue a formal power of attorney, and the matters entrusted by the pre-trial judge must be directly related to the cases he undertakes.
If the entrusted investigation activities need to be carried out by different personnel in different places, the pre-trial judge shall send the same power of attorney to the entrusted personnel.
When performing the entrusted task, the personnel entrusted by the investigating judge shall make relevant transcripts in accordance with the provisions and send them to the investigating judge within the prescribed time limit. The trustee may exercise the power of the pre-trial judge in the process of performing the entrusted task, but may not interrogate the defendant.
(1 1) identification. The pre-trial judge has the right to decide whether to conduct appraisal; Prosecutors and parties to a case may request authentication; If the examining magistrate thinks that their demands should not be met, he shall make a reasonable ruling.
The pre-trial judge should first select the appraiser of a specific case from the list of appraisers registered by the Supreme Court or the Court of Appeal; If the case appraiser is selected from outside the above list, the specific reasons shall be explained.
An appraiser selected into the list of appraisers of the Supreme Court or the Court of Appeal shall take an oath to the court when he is elected; The appraisers outside the list must swear to the court before each appraisal.
The pre-trial judge should explain the specific task of appraisal in his decision to conduct appraisal; If the problem of identification can determine the case, generally two appraisers should be appointed; If the problem of identification cannot determine the case, an appraiser is appointed. When the pre-trial judge delivers the sealed goods to the appraiser, he shall explain it to the defendant and record it.
The appraisal of appraisers should be carried out under the supervision of the pre-trial judge; When the pre-trial judge deems it necessary, he may also assist the appraiser at any time. After the appraisal work, the appraiser shall write an appraisal report, explain the appraisal process and conclusion, and sign the appraisal report; If the appraisers disagree, they shall separately state their own appraisal opinions and reasons; The appraisal conclusion and related articles shall be handed over to the court and recorded.
The pre-trial judge shall inform the parties of the appraisal conclusion and allow them to put forward their opinions and requirements within a certain period of time. If the examining magistrate refuses a party's request, he shall make a ruling and explain the reasons.
It should be noted that what we have described above are some public investigation measures used in French investigation activities, while the right to use secret investigation measures that are easy to violate human rights is in the hands of investigating judges, which is very different from our country.
As can be seen from the above, France, like most countries in the world, generally takes measures such as on-the-spot investigation, search, seizure, questioning witnesses, questioning criminal suspects, identification, summons, detention and arrest. Of course, judicial control, entrusted investigation and other measures have their own characteristics.
It is especially mentioned here that the criminal science and technology support of the superior investigation department in France to the subordinate investigation department is very strong. There are 22 regions in France, and the criminal technical force is mainly concentrated at the regional level. If the grass-roots investigation department needs criminal technical help in investigation activities, the criminal technical force in this area will arrive immediately. The author believes that this is a good mechanism, which can not only concentrate limited manpower, material resources and financial resources to exert the overall effect and comprehensive effect, but also help criminal technicians to be professional and refined, thus playing a role in tackling difficulties, being lean and efficient. It can give us a very important enlightenment: criminal technology should form a relative center, people, money and things of criminal technology should be relatively concentrated, and the criminal technology department of the superior investigation organ should have advanced instruments and equipment and highly skilled and sophisticated talents to form a real criminal technology authority. Investigation mode refers to the procedure adopted by the subject of investigation when conducting investigation activities. At present, there are two main investigation modes in the world: one-step investigation and two-step investigation. The so-called "one-step investigation" means that there is no clear stage division in the whole investigation process, but a fixed investigation subject has been responsible for the investigation activities to the end; The so-called "two-step investigation" refers to the investigation procedure that the investigation process is obviously divided into several stages, and different investigation subjects are responsible for the investigation work. France adopts the "two-step investigation" model.
France divides investigation activities into two stages, namely, preliminary investigation stage and formal investigation stage. [1] (p191) The so-called "initial investigation" refers to the investigation of criminal cases by the judicial police under the command of the prosecutor without the leadership of the investigating judge. When the judicial police know that a serious crime has occurred, they should report it to the prosecutor in time and conduct a preliminary investigation within 48 hours. The main tasks in the preliminary investigation stage are: to rescue the injured and undead victims; On-site investigation of a case with a crime scene; Find victims and insiders, and record their personal information and cases as much as possible; If the suspect can be arrested quickly, the judicial police will conduct preliminary interrogation, bring it back to the police station if necessary, and temporarily detain or even arrest the suspect; When necessary, the judicial police can also search suspicious persons, objects and places and detain suspicious objects, but they must go through the necessary procedures in accordance with legal procedures. The judicial police must hand over the preliminary investigation results to the procuratorate in the form of materials within 48 hours and report to the prosecutor. Then the prosecutor decides whether it is necessary to enter the formal investigation stage.
The so-called "formal investigation" refers to the investigation activities carried out by prosecutors and judicial police under the command of investigation judges. After inquiring about the current situation of criminal cases from the judicial police, prosecutors and criminal suspects, the pre-trial judge must also interrogate the criminal suspects, and the interrogation contents shall be recorded. Based on the clues and materials in the preliminary investigation, the pre-trial judge may issue an investigation order to the judicial police to authorize them to conduct in-depth investigation activities on specific issues. When the pre-trial judge thinks that the case has been ascertained, he may decide to end the pre-trial and make a pre-trial ruling. After the pre-trial, the pre-trial judge shall send all the files to the prosecutor, and the prosecutor shall put forward his opinions to the pre-trial judge within 3 days after receiving the files. When all the problems raised by the prosecutor are solved, the file will be handed over to the "procuratorial Committee". After re-examination, the pre-trial judge declares the investigation to be over when he thinks there is no problem.
Finally, it should be mentioned that the integration trend of the two western legal systems in the judicial system (including of course the investigation system) is very obvious. France began to reform its judicial system from 200 1 and 1. The main contents of this reform are: establishing the principle of presumption of innocence; Establish an express right to silence system; Exclude the evidential value of illegal evidence; Expand the scope of application of summary procedure and improve the efficiency of litigation; Give full play to the role of lawyers; Restrict the power of the subject of investigation, especially the pre-trial judge; Reform the way of trial and increase the confrontation between prosecution and defense. We should attach great importance to these, because today's world has formed an international society, with frequent exchanges between countries and regions and increasingly internationalized criminal offences. Therefore, the mutual reference and integration of judicial systems is an international trend, and we should conform to this trend with a positive attitude.