On the constitutional police power restriction and supervision mechanism

[Paper Keywords] Constitutional Supervision of Police Power Constitutional constraints
[Abstract] the right of police control and supervision, the supervision of the institutional approach, while the establishment of a more complete, but with less effective methods of supervision, especially in control and supervision mechanisms are still some fLaws in constitutional design. In this paper, the constitution From the perspective of three aspects of the constitutional constraints on police power and the supervision mechanism and Improvement: From the right to limit police power should be clearly defined statutory authority to establish the Prosecutor's leading role in the investigation, from the checks and balances should be establishment of judicial review to judicial control of police power, from the supervision system should be established to the people of investigators, strengthen supervision of the people.

Today's society, the police ruled the country to maintain order and an indispensable force for social security, in any society and its people need a strong, capable of ensuring peace in society police force. However, if the oath once observed that the powers abuse, which in turn against the society and people's legitimate rights and interests. because the oath is a national public power police power system of one of the most important powers, including police in the exercise of its statutory functions and administrative functions of all the powers of the Criminal, It directly affects the exercise of private rights of citizens. So for the police right in a society, a country the situation is actually running this country in a way marks the level of development of civilization and the rule of Law, abuse of power will result if the rights of citizens The great infringement. pArticularly in today's China, we have explicitly, "the rule of Law" and "respect for and protection of human rights" written into the Constitution, the oath must be exercised police power with respect and protection of human rights as the first thrust. And according to the Constitution theory, the exercise of public power and private right to enjoy this up he is an inverse relationship between consumption of the police power of the expansion means that the reduction of civil rights, abuse of police power is often the rights of citizens and naught f} l. The core content is the constitutional authority of the State through the adjustment of private civil rights and the relationship between the state power to regulate the operation, to prevent the country's public power for private rights of citizens caused by the infringement, to achieve the maximum respect for human rights and protection.

Sworn police power of the control and supervision, should be said that the establishment of monitoring methods in the system is quite complete. Both national supervision (including supervision organs of state power, the people's government of the National Prosecuting Authority and the supervision authorities and the people's court) , there are social supervision (including supervision of the PArty's organizations, people's organizations, monitoring and supervision of public opinion); both from the supervision of these external forces, but also from the public security depArtments and the monitoring of the internal organs of power Youli supervision of inspectors; both have prior supervision, but also post-supervision and so on. These monitoring methods are from a certain area and angle to ensure public security organs to exercise their powers strictly and conscientiously to serve the people. However, the effectiveness of supervision of view, does still exist many problems, the most prominent problem is that form of supervision is a relatively rich, but with less effective methods of supervision. In pArticular the abuse of police power for the control and supervision mechanisms are still some defects in constitutional design. In this regard, the author intends to Constitution From the limited perspective of the right checks and balances, the right to monitor three aspects of the constitutional constraints on police and improve the supervision mechanism and discuss issues such as rough.

First, the limited rights - specifically, the right to police the legal authority to establish the Prosecutor in Investigation of dominant position
Based on constitutional theory, any of the powers must be checks and balances, the power of unchecked outward and inward spontaneously seek expansion, leading to ultra vires and abuse of power, good power. Powers must be restricted, and only the power to balance power. And The more important powers, the greater the need to match the power to carry out checks and balances. The police power as the national public power system, an important pArt, and other public power are easy expansion of the same. As Montesquieu hung in his << Spirit of the Laws>> wrote, "The implementation of the police, the punishment of those not so much the Law, rather, is official. in the Criminal trial, the punishment of officials who so much, rather, is a law. sworn police The transaction is happening all the time, hardly needs any procedures, forms. "swear these words on the one hand that the police broad powers, on the other hand that the police oath during the exercise of power less constrained program, which is oath Review of "discretion" big. so easy to the expansion of the police power of innate, often the most vulnerable to abuse. and once it has been abused, the people of the injury, the damage to society will be very popular very grave. Therefore, constitutional point of view to build a mechanism to limit police power is particularly necessary.

The right of police for the most significant characteristic is the lack of constitutional limits of police power clear position. As sworn police the right to limit the uncertainty, and sometimes for some Government will consider the request the public security sector is committed to certain political, economic or social tasks , and these tasks should be undertaken outside the normal scope of the police, which led to the expansion of sworn police power, and greed of the police who produced the rent-seeking opportunities. For example, some local Government, public security departments for economic development, To protect a political task. This is actually forcing the police to take his oath should not bear the administrative functions, and the police will take this right extends to all areas of social life. or because of the importance of the public security sector and the government linked tasks, which have gained in the decision-making is not commensurate with the power of its functions. Thus, from the coercive power of the police system extends to the non-police matters, which is bound to lure sworn police corruption. Therefore, only the constitution will is clearly limited police powers within the statutory time, the power is likely to be effectively bound and supervision.


Criminal functions on police is concerned, China <<Xianfa>> the first 135 pairs of the three organs of public security has been making the relationship between the design is the "People's Court, People's Procuratorate and the public security authorities conducting Criminal proceedings, shall divide responsibilities, co-ordination, check each other to ensure the correct and effective enforcement of law. "Constitution of the design from the Chinese public security organs established between the three organs of both a co-ordination, the relationship between checks and balances, but also a kind of" assembly-line style "Criminal structures . in accordance with the constitutional theory of checks and balances of power only, the private rights of citizens can be effectively protected. and this action in the stressed structure, investigation, prosecution, trial, checks and balances between the three powers, they also stressed the close cooperation, which itself formal logic on the emergence of contradictions. emphasized that with the course can serve to strengthen efforts to combat crime, but suspects the right to rely on legal mechanisms to protect it? but also for pre-trial procedures, directly to the public security organs to be prosecuted who decide to implement to limit or deprive citizens of basic rights and interests of the coercive measures, such as arrest, detention, search, seizure, inspection, inspection, and these measures but can not be neutral judicial authorization and review, subject to no fair treatment of citizens can not obtain effective judicial remedy. This is bound to be litigation activities for the citizens of the public security organs to implement its own unilateral Offences activities. This lack of judicial control mechanism, a direct result of the status of the defendants and the police powers of the serious deterioration of abuse of the unlimited expansion of the situation and even Gang.

Therefore, I consider it necessary to build an integrated investigation and the criminal Justice model, pre-trial proceedings in the criminal process to strengthen the police power limitations and constraints. Here is the author needs to be emphasized in favor of Mr. Long Zongzhi advocate of the "Investigation and Prosecution integration "point of view [3], not in favor of some scholars advocate the" prosecutors and police integration "point of view [4]. prosecutors and police integration, stressed that the police command and prosecutors, the police easily weaken the sense of responsibility, is not conducive to Investigation of the professional division of labor, but not conducive to the detection of [4]. to strengthen cooperation in investigation and the specific idea is: Police investigating the case, may at any time during the investigation report to prosecutors, prosecutors guidance and consciously accept the restrictions to prevent the police powers unlimited expansion of the even abused. Prosecutor deems it necessary, can personally investigating the case, you can refer people to any investigation of a case. prosecutors the need to help the police, the police must be assisted. prosecutor's order, the police should be accepted or constitute a reading level . the core of the integration of investigation and prosecutors at the investigation stage is to establish a dominant position, conduct all proceedings investigating authorities, in particular, investigations, evidence act, the prosecution must be obey the leadership, discipline and supervision, and thus efficiency of the proceedings at the same time , but also for the protection of the legitimate rights of citizens set up a barrier, but also conducive to the status of the defendants to prevent serious deterioration and even the endless expansion of police power abuse.

Second, the checks and balances - the establishment of judicial review system, like the police to control the right of judicial power
The right of police power should be subject to judicial control is a necessary constitutional requirements, but also the development of today's society and trends of the times. The most common right of judicial control of the police is to administrative proceedings, the party may, after the police made to the judicial enforcement actions request authority from the judiciary on the legitimacy of the police and other enforcement actions to review and make a deal. In addition to this supervision mode after the administrative proceedings, the other jurisdictions control the more common way police power police to make certain basic rights and interests of citizens involved, you must first apply to the judiciary through judicial review and obtain the appropriate permits consent form before they could implement the appropriate administrative action. judicial power of the police power of this control model is generally mainly applicable to those involved in the field of basic civil rights acts. For example, when you need temporary restriction of personal freedom of citizens or the need for search, seizure, detention, monitoring and other conditions, the police have no right directly to the decision and implementation, but must first courts, magistrates, etc. apply, the judge decides whether to approve the consent [5]. to judicial control of police power, police power is based on the expansion of the natural ease of consideration, it has a solid constitutional theory.

First, the right of judicial power to control the police in line with the constitutional theory of "division of labor must be obtained and constraints of power" principle needs. Our commitment to the security police the main representatives of state administration and criminal investigation, criminal prosecution functions. In this role drive , the police captured in the performance of their functions, to collect criminal evidence, the parties subjective motivation is very strong. More importantly, the police have a strong state power, the power to grasp the rich resources of the police power itself and forced a one-way of the characteristics of the administrative counterpart, while other suspects are being managed and the status of the defendants, whose rights are most vulnerable to a mandatory feature of the police power of the infringement. According to "No person shall in his own case for the parties to act as judge "the law maxim, for the maintenance of public order and prosecute crimes related to the basic civil rights, if you allow the police to make their own decisions and to the dissatisfaction and opposition parties made a final finds that a violation of this no doubt philosophy. Marx once said: "In criminal proceedings, judges, plaintiffs and defendants are concentrated in one person, this focus is all the law and psychology contradict." So for the exercise of police power, judicial power As a last line of defense of social Justice, social disputes and controversies have the final right of decision, be controlled by the judicial power is in line with the division of labor and the constraints of power theory.


Secondly, the right of judicial power to control the police in line with our concept of constitutionally guaranteed human rights of citizens. Today's China, the protection of human rights and due process concept has deep heart for the exercise of state power must be considered during the important part. And the police as a national maintenance rule of order and an important tool for social security, in the exercise of authority, they must be inclined to safeguard national and social interests. For to be managers, on behalf of powerful countries in the face with the police in front of state coercive power, in particular, to restrict the freedom of police measures, with the inevitable in a weak position, more vulnerable to rights abuse of police power. From a certain sense, is played against the police, prosecution role, not by the police themselves to the limit, depriving the legality of civil rights for final decision, because "the accused to face with the absolute power of the prosecution of judges who know what does not help," "Palace of the complainant if it becomes law, we need God as a lawyer''I61. And Justice Right from its essence, should be detached, neutral, control, trial separation, the final judge of the principles of Justice are also recognized by the modern rule of law. Therefore, detection of judicial power to control the exercise of the right, in line with the philosophy and principles, but also help protect the civil rights and human rights.

Therefore, for the punishment of crime and protection of human rights reflects the unity, it is necessary to establish criminal investigation procedures of judicial review to restrict the expansion of police power. Concrete ideas are: (1) recommended the establishment of grassroots courts in the country for judicial review or court order court, Detective agency specializing in the application of coercive measures brought to review the legality, the issue of judicial writ. (2) the establishment of judicial review of the exceptions. that in certain circumstances to give undocumented Detective agencies can take mandatory measures power. (3) the establishment of habeas corpus system. give the parties and their agents, counsel at all stages of the proceedings has the right to apply for bail to the right of prosecution, such as being rejected, should be suspect, the defendant's request, both defense and prosecution by the court to listen to the views of the ruling quickly. If still rejected, may appeal to a higher court. that the police have a bearing on the personal rights of citizens and important decisions be changed property rights for the application, the police of any personal rights of citizens and major property decisions can only be by application, and make a final decision by the court. reposted elsewhere in the Research Papers Download http://www.hi138.com Third, supervision - the people of investigators set up the system, strengthening supervision of the people
In the course of the exercise of police power is often a relationship directly with the people, the police can not be strictly in accordance with the exercise of power, most say is the people, especially the events of the parties. Therefore, in order to enhance communication between police and to build harmonious society , I believe that the court system can refer to the people ', people's jury system "and the People's Procuratorate, the system recently introduced" people supervisor "system, also introduced in the police within the system" people supervisor "(or so-called" people's investigation Members ") system, that is before the appeal to attract public participation in the investigation stage, in particular concerning the fundamental rights of citizens to take the mandatory restriction and deprivation measures, the public supervision by the social democratic system. The constitutional basis in the following areas :
First, the system of people's investigators have a clear constitutional and legal basis. <<Constitution>> clear that all state power belongs to the people, the people enjoy extensive management of state affairs and social affairs, the exercise of police power must also be accepted people's supervision. <<Constitution>> Article 27, paragraph 2: "All state organs and functionaries must rely on the support of the people, keep in close contact with people, listen to their opinions and suggestions, accept their supervision efforts to serve the people. "Article 41 stipulates:" Citizens of the People's Republic of any state organ or staff have the right to criticize and make suggestions. "<<People's Police Law"> Article 3: "People's Police must rely on the support of the people, maintain close contact with people, listen to their opinions and suggestions, accept their supervision and safeguarding the interests of the people, serve the people wholeheartedly. "Article 46 provides:" Any citizen or organization of the people for the police violation of law shall have the right to the people or the People's Procuratorate, police, administrative and supervisory organs against or accuse. accepts the exposure time should be charged directly at the organ, and investigation results to the prosecutor, accused person. "These are the implementation of the people investigators the Constitutional and legal basis. Lenin pointed out: "Constitution is a paper record the rights of the people." realized the real rights of the people, the most important ways and through certain carriers, from the "paper" implemented. Otherwise, the people's rights can only be empty talk. implementation of the people investigators system is to implement the provisions of the Constitution and laws, for the people to exercise supervision over the work of public security to build a real bridge, through this kinds of institutionalized rigid procedures, the exercise of police power will be placed directly under the supervision of the people, safeguard the people supervise the exercise of the rights and promote democracy, regular people, procedures, and institutionalized.

Second, the people investigators have a solid system of constitutional theory. To establish people's investigators that the supervision by the public activities of the democratic system of Justice, the Constitution permits the basic theory of Marxism-Leninism on the supervision and implementation of state power the theory of democratic justice. Specifically, the focus in the following areas:
First, the power of supervision theory. Power needs supervision and restriction of power, without oversight inevitably lead to corruption, this is a public law. For the police state power as an important right, which both administrative and judicial nature, directly affecting to civil rights and property rights, must be effective supervision. This supervision requires both procedural constraints, but also have the people and the community of democratic supervision, and only so that it can effectively prevent abuse of power and corruption to maintain the right of the people of the police.


Second, the theory of socialist democracy and the rule of law. CPC National Congress proposed the construction of socialist democracy and the rule of law, to achieve the party's leadership, people are the masters and the organic unity of the rule of law. Sixteenth CPC Central Committee further emphasizes the increasing development the ability of socialist democracy, socialist democracy and the institutionalization, standardization and procedures, and promote the decision-making more scientific and democratic, to strengthen control and supervision of the exercise of power. implementation of the people investigators system, through the institutionalization, standardization and procedural approach, implementing the theory of socialist democracy and the rule of law, embodied in the legal supervision will of the people is to achieve "the Police for the public and law enforcement for the people" is an important measure.

Of course, in addition to the people of investigators set up the system, we also consider the police learn the advanced experience of governance of the Hong Kong Special Administrative Region, the establishment of the IPCC (all referred to as "the Independent Police Complaints Commission") to strengthen the law and discipline of police supervision and restriction Gang. Hong Kong, the IPCC is a community composed of independent body to oversee police complaints cases. In addition to monitoring the findings of each complaint, the IPCC will supervise the overall work of the police complaints procedures of public complaints against the police statistical data and work process that led to complaints its vulnerability to the Hong Kong Police Force Executive or the Chief Executive to make recommendations. With such a special supervision of police agencies, will help strengthen the supervision of the police power and enable citizens to lodge complaints. and with the people's congress supervision, administrative supervision, public opinion, judicial supervision, co-ordination of public oversight, can gradually establish an effective monitoring system constraints.

Engels once said: "One of the most civilized nations for the trivial observation, have authority over all the clans together bigger the 'authority', but the civilization's most powerful princes and dignitaries, or the greatest country commander may also envy the head of the clan enjoyed extraordinary, not obtained by coercion, indisputable respect. which is standing in society, while the former had to attempt to become an outside in the community and society on what ."(<< Family, Private Property and the State>>) So, the police "rule governed" by relying on the powerful "authority" is the people's support and advocacy. for the right to not police "at the top of society and social outside", and should be placed under the rule of law, was placed under the supervision of the masses. Only in this way, society is a unity to get the state to get a long-term stability, a harmonious society can be built. reposted elsewhere in the Research Papers Download http://www.hi138.com