Before answering this question, it is particularly important to note that the People's Police Law does not clearly stipulate that continuing questioning is equivalent to detention, nor does it clearly stipulate the legal meaning of continuing questioning and detention, and it does not stipulate that people who must continue questioning must be detained. Of course, the People's Police Law has made a vague treatment on this issue, and the specific reasons will not be discussed here for the time being. According to the author's understanding, continuous questioning and lien are two different legal acts. Continuing questioning is a kind of police investigation power (Yu Lingyun, a professor at People's Public Security University of China, clearly pointed out in the article "Legal Control of Police Investigation Power" that the system of continuing questioning is the police investigation power), and lien is an administrative compulsory measure.
As continuing cross-examination is a right of investigation, the respondent can voluntarily cooperate with the investigation or be forced to accept the investigation. That is, arbitrary investigation and compulsory investigation in administrative law. Arbitrary investigation is the most widely used investigation method, which refers to the investigation conducted with the assistance and consent of the respondents; Compulsory investigation refers to forcing the investigated person to accept the investigation by coercive means. On the surface, continuing questioning is a compulsory investigation, but as mentioned above, the People's Police Law does not stipulate that the interrogated person must be detained, so it can be understood that if the interrogated person voluntarily accepts the continued questioning by the public security police, then continuing questioning is arbitrary investigation; On the contrary, only when the interrogated person refuses to cooperate with the police to continue the interrogation will it be a compulsory investigation.
At present, a common concept is to equate detention with continued questioning, which is extremely unfavorable for public security organs to perform their duties according to law. As an administrative compulsory measure, lien will cause a series of legal consequences, which will be discussed later. Let's first look at why lien is an administrative compulsory measure.
Regarding the determination of the legal nature of lien, the People's Police Law has not made clear provisions, and the understanding of its legal nature should be said to have gone through a tortuous road. At first, some people did not recognize lien as an administrative compulsory measure, but considered it as a criminal compulsory measure.
As we know, criminal compulsory measures come from the clear provisions of the Criminal Procedure Law. According to the relevant provisions of Chapter VI of the Criminal Procedure Law, there are only five criminal compulsory measures: summons, bail pending trial, residential surveillance, detention and arrest. Obviously, detention and interrogation measures are not criminal coercive measures.
According to Article 6 of the People's Police Law, public security organs have dual functions. One is the criminal investigation function, that is, the public security organ has the right to file a case and take legal measures needed for investigation; The second is the administrative function. It is an administrative act for public security organs to exercise continuous interrogation and lien, which should not be controversial in theory. 1997 The Ministry of Public Security issued a book "Review of the Basic Quality Examination of the People's Police in Public Security Organs" (edited by the Political Department of the Ministry of Public Security). The definition of lien is: "lien refers to a public security administrative measure in which the public security organs continue to interrogate the interrogated person in order to maintain social order." Here, we notice that the Political Department of the Ministry of Public Security does not use the word "compulsory" in its definition. So, is detention and interrogation an administrative compulsory measure?
The definition of administrative compulsory measures in administrative law is: "Administrative compulsory measures refer to the compulsory measures with limited power taken by state administrative organs to temporarily restrict or dispose of the person, behavior and property of specific citizens, legal persons or other organizations in accordance with the provisions of laws and regulations in order to maintain and implement administrative order and prevent and stop the occurrence and existence of social harmful events and illegal acts." As an independent specific administrative act, administrative coercive measures are the constituent elements of administrative coercive acts, which have the following legal characteristics: 1, mandatory. It means that when the administrative organ implements compulsory measures, the person subjected to execution has the obligation to exercise restraint, otherwise it will bear legal consequences; 2. Non-discipline. It usually restricts rights, not deprives them; 3. temporary. Compulsory measures are an intermediate behavior, not a final behavior; 4. strength. Characterized by physical behavior, such as restraint on people. After careful analysis, the characteristics of lien are completely consistent with those of administrative compulsory measures. 1, required. It is independent of the will of the interviewee; 2. Non-discipline. Article 9 of the People's Police Law clearly stipulates: "If the public security organ considers it necessary to take detention or other compulsory measures against the interrogated person according to law after continuous interrogation, it shall make a decision within the time limit specified in the preceding paragraph; If the above decision cannot be made within the time limit stipulated in the preceding paragraph, the interrogated person shall be released immediately. " It can be seen that the lien is non-disciplinary; 3. temporary. The detention time is generally 24 hours, and the longest is no more than 48 hours. It can be seen that restricting personal freedom is only a temporary measure; 4. strength. Detention measures are implemented by public security organs, and detained interrogators lose their freedom during detention.
Obviously, in theory, lien is an administrative compulsory measure.
In recent years, the Ministry of Public Security has explicitly recognized detention as a compulsory measure to restrict personal freedom in some normative documents. For example, in the reply of the Ministry of Public Security to the Beijing Public Security Bureau on June 1998 13, it was clearly pointed out that "the question of whether the detention time can be offset against the term of reeducation through labor" (Gong [1998] No.4).
In judicial practice, in recent years, some citizens filed an administrative lawsuit against the lien decision of the public security organ, which was supported by the court.
1In April, 1999, Liu Xiang 'an, a farmer from Ezhou City, Hubei Province, was detained and questioned by the Liangzihu District Public Security Bureau of Ezhou City on suspicion of stealing pearls from villagers in the same village, and was later released due to insufficient evidence. Since then, Liu Xiang 'an sued the branch for illegally restricting his personal freedom. The local courts at two levels agreed that Liu Xiang 'an's detention by liangzi lake Public Security Bureau was an administrative compulsory measure, and Liu Xiang 'an had the right to file a lawsuit with the public security organ. Later, Ezhou Intermediate People's Court ruled that the Liangzihu District Public Security Bureau violated legal procedures and decided to cancel the decision of retaining Liu Xiang 'an in the branch.
Lien is a compulsory measure, which is not only the victory of legal theory, but also the inevitable result of China's strategy of governing the country according to law and Theory of Three Represents. However, as an administrative coercive measure, lien will inevitably have certain legal consequences.