Deviation between Expression and Practice：Theoretical Reflection on Preliminary Investigation of DutyCrime〔＊〕

Wu Changqing

（School of Law Tianjin University of Commerce，Tianjin 300134）

Preliminary investigation is a procedural system that spontaneously generates from China’s investigation practice of duty crime，with ongoing arguments about its justification and legitimacy.The theoretical study on this system has not only clarified a series of basic theories also put forward constructive suggestions for its reform and improvement so far.Focusing on the practical operation of preliminary investigation，this paper describes the deviation between standard expression and practical operation，analyses its advantages and disadvantages and points out the possible reform direction.

Ⅰ.Standard expression and practical operation of preliminary investigation

1.Preparation for registration：standard expression of preliminary investi－gation

From the aspect of norms，the image of preliminary investigation is：

（1）Preparation for registration

The structure of provisions and basic contents of major normative documents show the core function of preliminary investigation is to make preparation for registration.Analyzing the structure of provisions of Rules of Criminal Procedure of the People’s Procuratorate issued by Supreme People’s Procuratorate in1997，1999 and2012，it is obvious that preliminary investigation serves as a link between accepting cases and registration.Despite different definitions of preliminary investigation in major normative documents，its core is to confirm whether there is condition of registration under the law through preliminary investigation.

（2）Arbitrariness of measures

According to criminal procedural theories，registration marks the beginning of criminal prosecution and compulsory measures are not permitted in the preliminary investigation before registration.On this basis，normative documents，such as Rules of Criminal Procedure of the People’s Procuratorate（for trial implementation），stipulate that measures adopted in preliminary investigation are restricted to arbitrary measures.

2.The tendency to become focus and formal investigation：practical operation of preliminary investigation

（1）The standard for registration

The Criminal Procedural Law stipulates that the condition of registration is criminal fact does exist and criminal liability shall be prosecuted.But it is unnecessary and impossible to collect all evidences for criminal fact and criminal suspects at the stage of registration.So the task of preliminary investigation is just to examine clues through preliminary investigation and determine whether to register or not.However，preliminary investigation departments always raise the standard for registration and even equate registration with case settling.Some comrades speak bluntly，case materials are generally composed of a large number of investigation materials at the stage of preliminary investigation and only a few investigation materials after registration.Some cases of which preliminary investigation last up to ninety days are settled only in two or three days after registration.〔1〕

（2）“Confession”at the stage of preliminary investigation

The confession is obtained through compulsory interrogation that can only be adopted after registration.That is to say，interrogation is not permitted at the stage of preliminary investigation.However，overdependence on “confession”always exists in the practice of preliminary investigation.Comrades in practical departments have summarized the process：investigation departments investigate informers and insiders secretly，decide investigation direction and collect testimony of witness and other written evidence materials as basic mate－rials of preliminary investigation.After analyzing these materials，they contact“objects being investigated”and obtain“confession”through“interrogation”at the specified place.Once “confession”is obtained，the case will be generally registered.〔2〕

（3）Compulsory measures in preliminary investigation

Due to heavy investigative task，understaffed labor and outdated investigation technique，illegally using of investigation measures sometimes and replacement of investigation by detention and arrestment may happen.〔3〕Because there is no specific provision about measures of preliminary investigation in Criminal Procedural Law，some local procuratorial departments constantly question and disguisedly arrest objects，even detain and freeze their property，making preliminary investigation formal investigation.〔4〕Thus，there is serious deviation between standard expression and practical operation of preliminary investigation.

Ⅱ.The reason for deviation between standard expression and practical operation of preliminary investigation

1.The influence of the reform of investigation procedure on duty crime investigation

Our criminal procedural laws have been greatly amended for three times since Criminal Procedural Law was promulgated and implemented in 1979.The improvement of transparency and antagonism caused by the reform of investigation procedure strengthen suspect’s ability of counter－investigation，which poses great challenges to duty crime investigation.Traditional investigation mode is in a tough position now.

To deal with the challenges brought by legalization of investigation procedure，investigators have two choices.The first is to transform actively.Supreme People’s Procuratorate former Deputy Procurator－General，Zhu Xiaoqing thinks，the concept of duty crime investigation should be transformed from outdated to updated，core from obtaining confession through questioning to secret investigation before direct contact with the suspect，measures from traditional to modern and mechanism from individual to overall combat.〔5〕

The second is more practical for investigators to shift the core of investigation to preliminary investigation with the purpose of evading the negative impact of investigation procedure after registration and lawyer’s intervene.

2.The influence of target assessment

Target assessment is an important administrative management pattern，whose result is taken as the criterion of rewards and punishment.People will adjust their actions to adapt to and achieve the efficiency required by performance measurement.〔6〕

There are two methods to acquire high scores，more cases and fewer mistakes.Given the stable numbers of duty crime cases in China，the second method is effective.Thus，it is wise for actors of preliminary investigation to shift the focus before registration，enhance preliminary investigation and decide cases generally before registration so as to avoid case withdrawal，non－prosecution or acquittal after registration.

3.To evade risks from objects being investigated

Objects being investigated in duty crime cases always have certain power and special status and may use their power and relationship networks to influence cases handling.Firstly，they may take revenge on investigators and investigation units afterwards.Secondly，they may influence people，money and materials of the procuratorate that has strong reliance on local governments.

Registration，as a mark of the beginning of criminal proceedings，influences objects being investigated greatly.Once a case is registered，the fame，political future and family life of objects will be badly influenced.Haunted by power，it is easy for the objects who have suffered wrong registration to take revenge.Therefore，preliminary investigation is very important.

4.Relations with preliminary investigation system and case registration system

Preliminary investigation system established by normative documents is technical and procedural without regulations on procedural consequences and procedural punishment for violating regulations.Besides，supervision and restriction mechanism of right to preliminary investigation is hardly established.It’s no wonder that preliminary investigation system is violated since there is no basic constraint on exercise of power.

In conclusion，deviation between expression and practice is the result of weighing advantages and disadvantages and rational selection of actors of preliminary investigation.Untimely registration will bring investigation units and individuals potential risks.Arbitrary registration without final decision will harm objects being investigated and influence target assessment.For those reasons，investigation departments have to enhance preliminary investigation.

Ⅲ.Advantages and disadvantages of deviation between expression and practice of preliminary investigation and possible reform direction

1.Analysis of advantages and disadvantages of deviation between expression and practice

The advantages are：first is to reduce the risks for actors of preliminary investigation，which is the basic motivation for making preliminary investigation formal investigation；second is to protect objects being investigated to a certain degree.Some think the nature and specificity of cases is the reason why the procuratorate values preliminary investigation.People being reported in cases within the jurisdiction of the procuratorate are usually treated prudently because of their special status.〔7〕

The disadvantages are：firstly，investigation procedure becomes void；secondly，personal right，property，privacy and other fundamental rights are inter－vened unwarrantedly；thirdly，transformation of traditional criminal investigation mode is impeded.

2.Possible reform direction

The writer thinks the reform can be achieved from the following aspects：

（1）Changes in benefit drive mechanism

Considering the basic trend of development of protection of human rights，the reverse reform of investigation procedure of duty crime to turn into convenient investigation and restrict the suspect’s rights is possible.Benefit drive mechanism can be only changed from two aspects of target assessment and task evasion from objects being investigated.

Firstly，make target assessment mechanism scientific.With deepening understanding of negative impact of target assessment mechanism，practical circle is attempting to build a scientific target assessment mechanism in both contents and methods and has achieved results.However，because the rate of case withdrawal，non－prosecution and acquittal remain important assessment indexes，it is unknown whether current reform will change benefit drive mechanism.

The key is how to assess.The writer thinks it more important to abolish the indexes of rate of case withdrawal，non－prosecution and acquittal that violate procedural laws and bring negative orientation for prosecutorial work.The writer suggests assessment results should be only used by prosecutorial organs at higher levels to get to know the situation of case handling at lower levels to avoid unrealistic competition and distortion of original intention of target assessment.

Secondly，evade risks from objects being investigated.The first of two above－mentioned risks is unpredictable，so this paper will discuss the second.Because of serious localization of the procuratorate，power and relations of objects being investigated may exert adverse impact on people，money and materials of the procuratorate and influence the behavior selection of actors of preliminary investigation.Therefore，“delocalization”of the procuratorate will avoid the second task from objects being investigated to a great degree，which is the core of current judicial reform.Unified management of people，money and materials of the procuratorate below the provincial level is of great significance to remove interference from objects being investigated and ensure independent exercises of procuratorial power.But the reform plan still needs supporting measures and its effect of avoiding local interference remains unknown.

（2）Possible reform of preliminary investigation system and registration system

The scholars have different opinions about concrete institutional setting of preliminary investigation system.There are two typical ideas：firstly，draw lessons from western criminal procedural pattern and incorporate register into in－vestigation procedure；secondly，establish the legal status of preliminary investigation as an essential stage in duty crime investigation.

However，the crux of problem is the lack of legal consequence，implementation mechanism and supervision and restriction mechanism.So the writer thinks the solution is：firstly，stipulate arbitrary measures should be only used in preliminary investigation and the using of compulsory measures such as arrest and detention should be examined and approved after entering the stage of formal investigation.Secondly，the exclusionary rules of illegal ecidence should be applied to the evidences obtained by violating preliminary investigation.Thirdly，strengthen the supervision on right to preliminary investigation.

Ⅳ.Conclusion

This paper describes the deviation between expression and practice of preliminary investigation of duty crime and states the reason for this phenomenon，advantages and disadvantages as well as possible reform direction from a view of actors of preliminary investigation.Because the view is limited within actors of preliminary investigation and macro institutional background of duty crime investigation is ignored，the reform measures provided in this paper are relatively limited.From a macro perspective，to change this phenomenon relies on the improvement of ability of investigation and evidence collecting，transformation of investigation mode of duty crime and establishment of supporting anticorruption systems like the publicity system of official property.

（Translate by Dai Jiabao）

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