This is the biggest feature of the investigation report, and it is also a breakthrough in the traditional research methods of legal theory. The article "Investigation Report" mainly adopts the combination of interview investigation and questionnaire investigation.
1, interview survey
The main advantages of interview survey are flexibility, convenience and mobility, which can be applied to qualitative research and quantitative research. The article "Investigation Report" adopts the methods of key interviews and in-depth interviews in unstructured interviews, mainly interviewing more than 30 respondents. The qualifications of these interviewees are generally people from the public security department and people from all walks of life who have a certain level of cultural knowledge and understanding of the right to silence. However, the survey report did not list the opinions of the "in-depth interview" people in its comments on the survey results, nor did it elaborate on the new information and new gains obtained in the in-depth interview process beyond the original design problems. Because no matter how thoughtful the investigators are, they can always get unexpected new gains in face-to-face interviews with the respondents. If you can mention these gains in the article, it will make the article richer and more convincing.
2. Questionnaire survey
Because the interview survey itself has some limitations, such as high cost, more manpower and time, which has a restrictive effect on the scale, that is, "quantity", in order to obtain more comprehensive and objective results, the research method of combining interview survey with questionnaire survey is adopted. The article "Investigation Report" is an example of combining these two methods at the same time. In the survey, 423 questionnaires were distributed and 400 valid questionnaires were recovered, including 45 public security personnel, 69 inspectors, 40 judges, 27 lawyers, 82 teaching and research personnel and 0/37 ordinary residents. Through this quantitative research method, the scientific research method is guaranteed.
Through the combination of interviews and questionnaires, the article "Investigation Report" makes us clearly see the important role it plays in the investigation results: ① It provides abundant empirical data for the study of "China's right to silence" with detailed data. For example, on the question of "Right to Silence: How Strong is the Consciousness of Ordinary People in China", the investigators explained with specific data: "The vast majority (over 96.7% on average) of the respondents' know' or' know a little' the right to silence, and only a few respondents (only 3.3% on average) know nothing about the right to silence, which shows that we have played a very good inspiration and enlightenment on the right to silence. ② Provide a basis for theoretical design. In the fourth part, "Design of the Rules of the Right to Silence in China", the article "Investigation Report" theoretically expounds the micro-design of the rules of the right to silence and the supporting measures to implement the right to silence. It can be said that the sublimation of this part of the theory is entirely based on the above-mentioned investigation and research on the right to silence. For example, in terms of the scope and extent to which the rules of the right to silence in China should be applied, the survey results show: "The survey statistics reveal that when formulating the rules of the right to silence in China in the future, the scope of the right to silence is not as big as possible, nor as small as possible, but should be appropriately limited (7 1% of the respondents hold this view); The applicable stage of the right to silence should be mainly applied to the investigation stage (this stage has the highest proportion of approval among the three stages of litigation), or to all three stages of investigation, prosecution and trial (43% of the respondents think so). "
It can be seen that the investigation method is the most objective and scientific legal research method, and only in this way can it better serve the practice.
Second, statistical analysis methods
The article "Investigation Report" uses the method of mathematical statistics to quantitatively analyze the numerous figures obtained from the investigation, thus providing a strong basis and support for theoretical inference. There are two main statistical analysis methods used:
1, univariate descriptive statistical analysis
The survey report uses classified variables, and its value is only the category attribute-occupation, that is, the survey objects are only divided into six categories: public security personnel, inspectors, judges, lawyers, teaching and research personnel and ordinary residents, and there is no difference in size or degree for each specific variable. At the same time, it can be seen from the number of questionnaires that ordinary residents are the variable values with the highest frequency, which is 137, that is, Mo= ordinary residents, and its outlier ratio υ = (n-FMO)/n = (400-137)/400 = 0.6575. This shows that the representation of most "ordinary residents" is not high, that is, other variables account for a certain proportion, which can reflect that the selection of this survey has considered the depth and breadth of various survey objects, avoiding one-sidedness and being more objective.
2. Inference statistical analysis
Inference statistical analysis is to infer the characteristics of the population from sample data. The article "Investigation Report" mainly adopts the interval estimation method of population percentage in parameter estimation, and estimates the unknown parameters of the population through samples. For example, The Right to Silence: Is it really beautiful? The survey results show that 80% of lawyers think the right to silence is a good system. If n=27 lawyers' questionnaires are taken as samples, assuming the confidence level of the survey is 95%, then P=80%=0.8, and F(t)=95%. It can be seen that the proportion of lawyers who agree that silence is a good system is 65% to 95%. Therefore, this method can be used to estimate and judge the opinions of other lawyers who have not been investigated, thus providing a broader basis for the theoretical analysis of the right to silence.
Third, the logical thinking method
Theoretical thinking is the late stage of social science research, which is characterized by thinking processing on the basis of simplifying and quantitative research on literature or empirical data, and rising from perceptual knowledge to rational knowledge. Looking at the article Investigation Report, we can see that it mainly adopts induction in formal logic. The investigation report adopts incomplete induction, which only investigates part of an object and infers that all objects have or do not have certain attributes according to their attributes. This is called incomplete induction. This method is widely used in this investigation report. For example, The Right to Silence: Is it really beautiful? 4 1% of all the respondents thought it was not, 22% didn't know it, and only 37% thought it was, which showed that the proportion of respondents who made accurate judgments was not high, so it can be said that the application of induction is a thinking process from individual to general, and the application of this method is particularly important in the investigation, which can make the investigation results true and credible.
Four, the legal way of tissue transplantation
Tissue transplantation was originally a concept in biology, which was introduced into the field of law to study the legal transplantation through analogy. Legal transplantation refers to bringing the legal system or mechanism and operation technology of other countries or regions into their own legal system. It has a problem similar to organ transplantation-the problem of "successful acceptance by the recipient". Many laws in our country simply transplanted the laws of developed countries in market economy without careful consideration, which led to the exclusion of dissidents and many laws failed to transplant. In order to improve our criminal procedure law, it is necessary to transplant the law, and the introduction of the right to silence is the embodiment of the method of legal transplantation. As we know, the system of right to silence, as an important part of modern criminal evidence system, originated from Roman law at first, and then gradually played an important role in criminal proceedings in all countries of the world. The right to silence has only been introduced into China's criminal procedure law in recent years. Therefore, the adaptability of the right to silence in China arises, that is, whether the existing soil in China society is really suitable for the growth of this "imported" right to silence. It can be seen that in the process of constantly improving itself, the academic circles of criminal procedure law in China also realize that they should introduce advanced foreign experience, that is, transplant foreign legal systems. At the same time, they also realize that they should not blindly introduce. We must find out the defects of China's criminal procedure law and the heritable "humanistic genes" (that is, social environment) that lead to these defects, and then find and cultivate excellent genes or methods that can be used to replace and improve "humanistic genes". Therefore, before the right to silence is formally regulated, it is necessary and important to study it, understand its application in China and the measures to improve the system. But in any case, introducing the right to silence through legal transplantation is a very convenient way to improve the legal system of criminal procedure in China, and it also opens up a brand-new topic, which has considerable research value.
An Empirical Analysis Method of verb (abbreviation of verb)
As a research method, empirical analysis actually includes two basic levels: logical empirical analysis and empirical empirical empirical analysis. The so-called "empirical analysis" generally refers only to the latter, that is, "social analysis method". The so-called "empirical method" is a method that regards the implementation of law as a social phenomenon according to the model of sociology itself and makes a sociological explanation of these phenomena. It can be said that social analysis method is the most basic and common research method in almost all social science empirical analysis. Empirical analysis belongs to the category of descriptive methods. The so-called descriptive method is an empirical expression and explanation of existing legal norms and legal activities, that is, it falls into the category of reality (IS). Empirical analysis is a basic research method, accordingly, it mainly focuses on social investigation in specific methods.
In the article "Investigation Report", the empirical analysis method is adopted as a whole, and this empirical investigation is completed by designing three big questions: "Right to Silence: How do China people perceive it", "Right to Silence: Is it really beautiful" and "Right to Silence in China: Is it a luxury", supplemented by various specific small questions. It is rare to study law by empirical analysis, and the common method is value analysis (which will be explained in detail below). The role of empirical analysis is that, taking the investigation report as an example, through specific personal investigation work, we can obtain real and reliable first-hand information, and we can really grasp the true views of all walks of life on the right to silence, which is unknown to legal researchers sitting in the study. Moreover, only through this personal investigation can we know whether the advantages of introducing the right to silence outweigh the disadvantages or the disadvantages outweigh the advantages. Legal research should come from practice and be higher than practice. If divorced from practice, it can only become passive water, trees without roots. Just as Bentham, the originator of positivism law, first divided empirical analysis and value analysis in the field of law, he strongly advocated that legal research should be based on practical methods. In fact, the formulation, implementation and reform of the law itself will inevitably have an impact on society, and it will also constitute an extremely complicated social phenomenon. If legal researchers only limit their observation to the legal rules themselves, they will ignore a large number of social factors that restrict the realization of the law. As far as the implementation of the criminal justice system is concerned, there are a series of problems in China, one of which is extorting confessions by torture, which makes it necessary to study the right to silence as a right. It can be said that extorting a confession by torture itself does not conform to the provisions of the Criminal Procedure Law, and even directly violates it. However, why it happens and is quite common involves not only the lax criminal procedure legislation itself, but also social problems. Therefore, to explain and analyze this problem, we must adopt empirical analysis methods such as data statistical analysis, interviews and social surveys. Observe the present situation, causes and development track of a legal phenomenon more accurately, and find out the specific social factors and their relationships that restrict the formulation and implementation of laws. Through such analysis, legal scholars can provide people with a dynamic, three-dimensional and quantitative explanation of a problem, so that their understanding of a problem is as close to the objective reality as possible. This is like the relationship between diagnosis and treatment in medicine. Sociological analysis is like a doctor's diagnosis of a disease. This work should be as accurate as possible, so as to accurately analyze the pathology, degree and cause of the disease. As for treatment and even surgical activities, it belongs to the scope of "knowing" and "doing".
Sixth, the value analysis method
Value analysis is a research method corresponding to empirical analysis. Legal scholars usually use it to demonstrate the legitimacy and rationality of a principle, rule or system, or to criticize the injustice of a system or phenomenon. Value analysis belongs to the category of normative methods. The so-called normative method is to find out the shortcomings of the existing legal norms and legal practice, and to work out a solution to the problem, that is, it belongs to the category of "should". As for what is and what should be, I don't think there is an insurmountable gap between the two. They are interrelated and complement each other. What should be based on what is what, and what should be the final result. As far as the investigation report is concerned, the first three parts obviously adopt the empirical analysis method, and the fourth part is the obvious value analysis method.