A Comparative Study on Chinese and American Investigation Terminology〔*〕

Wang Rui

(Nanjing Forest Police College,Nanjing　Jiangsu　210023)

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A Comparative Study on Chinese and American Investigation Terminology〔*〕

Wang Rui

(Nanjing Forest Police College,NanjingJiangsu210023)

Ⅰ.Comparison of the terminology of the Sino-US investigation management system

1.Organization system

In police system of China,the Ministry of Public Security sets up bureau of criminal investigation,economic crime investigation bureau and the bureau of narcotics;public security bureau (station) of provinces,municipalities directly under the central government,and autonomous region sets up criminal police corps (or criminal investigation bureau) and the corresponding economic crime investigation,anti-drug agencies;provincial municipal public security bureau and the local public security department set up a criminal police detachment;county (city),and district public security organs set up criminal police brigade;criminal police squadron of zone of responsibility is under criminal police brigade;railway,transport,civil aviation,forestry public security organs and customs anti-smuggling police department set up corresponding criminal investigation mechanism.Investigation in the system has the following characteristics:integration of departments and regions at different levels,system of team construction,hierarchical management system,responsibility system and system of enriching the basic level.

American police system is decentralized,there being four levels of federal,state,county and town.Regardless of the size of the police agencies,they are independent from each other,and enjoy the same independent right of law enforcement.Federal law enforcement agencies include the federal bureau of investigation,drug enforcement administration,alcohol and tobacco firearms bureau,criminal investigation bureau of department of the army,and Washington D.C.metropolitan police bureau.The system of state police agencies are not the same in the United States.From the perspective of name,there is state police,state highway patrol,state law enforcement bureau,and state public security bureau;state police agencies mainly have patrol mode,law enforcement mode and binary mode.Law enforcement agencies at the county level have mainly the modes of the Bureau of justice and the police station.The main force of the American police is the town police,which accounts for about 3/4 of the total number of American police officers.American prosecutors play a very positive role in criminal investigation activities,and they are often involved in criminal investigation.The procuratorial system of the United States is characterized by “three levels and two tracks”,that is procuratorial agency has federal,state and municipal levels;the procuratorial system consists of two parts,the federal and local sub-systems,and the two are parallel.The procuratorial system of the United States also has the characteristics of dispersion and they are independent from each other.

2.Procedure system

The system of investigation procedure is the investigation of criminal cases that have been put on file by the investigation organ,in order to find out the facts of the case,collect the evidence of the crime,and seize the criminal suspects,expose and confirm the preparation activities of criminal litigation.The operating principle of the investigation procedure in our country can be summarized as:the principle of objective and considerate obligation,the legal principle of arbitrary investigation and compulsory investigation,the principle of proportionality,the principle of main underwear-based detection with moderate openness,and the principle of efficiency.From the point of view of investigation practice,the investigation of a case contains a number of links,usually accepting the case,initiating the case,finding the suspect,examining and identifying suspects,carrying out preliminary investigation,and transferring examination and prosecution,which are the general steps of investigation of criminal case.

Criminal investigation model of most American police agencies is a two-step method,that is the patrol is responsible for preliminary investigation of the case,professional investigators are responsible for the subsequent investigation of the case.The first to accept the most criminal cases is the patrol.Command center of police headquarters or criminal investigation department receives a preliminary investigation report,and according to the needs of combination of field investigation and technical appraisal report,the circumstances of the case are analyzed.Finally,according to the nature of the case and the possibility of detection,it decides whether to initiate an investigation,and distribute the initiated case,in accordance with the regions or types,to different investigation departments or investigators.Following investigation is the main content of the investigation of the case,including examining witness,investigation of scene,the collection of information,the discovery of clues,examining clues,the retrieval of files,and a variety of secret investigation measures,etc..The subsequent investigation of the United States generally adopts the individual responsibility system of investigator,and the follow-up investigation of major cases is in the charge of the special group for the examination of a case.

Ⅱ.Comparison of the standard terminology of Sino-US investigation law enforcement

Dong Biwu once said that the law was a kind of culture,and law enforcement standardization of the police also reflected a kind of culture.It has been mentioned above that Chinese modern police is established by “draw some from the system of western countries”.Although there is essential difference between the police system of our country and that of some western countries,many points still can be used for reference.

In order to find out the facts of the case,collect evidence and confirm the crime,the investigation measures which are often used by the investigative organs of China in the process of investigating and solving cases,are called routine investigation measures.Routine investigation measures in the specific cases has higher utilization rate,especially for the investigation at the scene,searching and queuing,survey and interview,questioning the witnesses,questioning the victim,questioning suspects and others.In investigation of almost every case,it should be used.Criminal crime,especially a seriously violent crime,generally has sudden,violent,intelligent and dynamic characteristics,requiring investigative organs,according to the specific circumstances of the cases,to make a rapid decision and implement targeted emergent measures,mainly including wanted,informed,chase and intercept,and border control.The fundamental investigation measures also known as basic business of investigation,means that in order to meet the needs of adaptation to fighting with the criminal crime at the macro level,the investigation organ,taking the law,characteristics and trend of criminal crime as basis,formulates and implements the overall,long-term,offensive and preventive investigation measures restricting the investigation directions,including criminal intelligence,special criminal informers,criminal technology,police dog technique,position control,criminal suspect regulation,investigation cooperation and anti-terrorism mechanism.In order to prevent the suspects from escaping,committing suicide,acting in collusion to make each other’s confessions identical,destroying evidence and carry out new crimes,and ensure the smooth progress of the investigation,investigative measures that the investigation organ,according to the law,takes to temporarily restrict the personal liberty of suspects are called compulsory investigation measures.In accordance with the relevant provisions of the Code of Criminal Procedure of the People’s Republic of China,compulsory investigation measures mainly includes five categories,respectively bench warrant service,posting a bail and await trial with strict liberty of moving,supervision of residence,detention,and arrest.According to the National Security Act and the People′s Police Act,in order to investigate some crimes that have serious social harm but public investigation is difficult to work out,statutory concealment measures taken by the legal state organs or departments within the scope of their statutory functions and powers,in accordance with legal procedures,are called secret investigation measure,mainly interior-line investigation measures (informer of criminal investigation,undercover investigation),outside investigation measures (secret detention and secret arrest,secret identification,tracking and stalking,waiting and monitoring,secret photographing or videoing,and undercover investigation).

The use of coercive powers for the staff of police bureau must be reasonable and necessary in implementing arrest,and protecting themselves or others from personal attacks and body resistance,from harm and death.Decisions of any use of coercive powers made by staff must be based on reasonably considered existing personal attacks,body resistance,harm and death that may cause.Four levels of coercive powers recognized by the police when the law enforcement officer performs his duties:communication / oral control / appearing on the scene;body coercive power;police weapon;fatal coercive powers.The police chief establishes the Examining Committee for coercive powers and the use of weapons,and exams all reports on the use of coercive powers by the police officers and firing.The overall operation aspect and procedures are the focus of the examining.

The first to reach the scene of most criminal cases is patrol,responsible for the protection of the scene and carrying out a preliminary investigation to the scene.The official investigation shall be implemented by the investigators and the technical personnel of investigation.The traces and evidence found through technology investigation must be properly kept by specially-assigned person,forming a complete.The judge of the United States is very strict with requirements of the “chain of safekeeping” for the evidence.The traces and evidence found through investigation shall be tested by the specialized scientific and technical personnel and the expert opinion shall be made.The United States uses the appraiser system,and the law does not make uniform provisions on the qualifications of appraiser,but according to the specific conditions of different cases,the qualification of the appraiser shall be determined by the judge and jury.

Most states in the US divide the arrest into arrest with a warrant,felonious warrantless arrest,and misdemeanor warrantless arrest.Arrest warrant is issued by a magistrate in general.The police implementing the task must submitted indictment by oath to the magistrate.The magistrate issues arrest warrant according to the accusation materials provided by the police.According to the accusation materials,the magistrate determines whether the “reasonable basis” constitutes the accused crime (“possible reasons” or “tenable reasons”).Felonious arrest warrant requires police implementing the arrest to have a “reasonable basis”,and the arrested persons are implementing or have implementing a certain kind of crime prescribed by the law.

Search and detention as the main methods of collecting evidence must conform to the principle of “fruit of poisonous tree”.The laws of the states of the United States generally divide search into two kinds:search with a warrant and search without warrant.From the point of view of American judicial practice,the warrantless search allowed by laws mainly contains six kinds of situations:search in a emergent state;search of moving vehicle;continuing search;“at a glance”;search under principle;search of border.Search warrants are not applicable to search of body.The search of body must occur only after the arrest or it belongs to the situation of being able to be stopped momently or pat-down search.

在產(chǎn)品質(zhì)量信息收集、利用方面，政府監(jiān)管部門規(guī)模大、效果明顯，少數(shù)企業(yè)后來(lái)居上，檢驗(yàn)檢測(cè)認(rèn)證機(jī)構(gòu)正在積極趕超。我國(guó)自1985年實(shí)施產(chǎn)品質(zhì)量監(jiān)督抽查制度以來(lái)，國(guó)家、省、市、縣組織開(kāi)展了各級(jí)監(jiān)督抽查。僅2013-2017年，產(chǎn)品質(zhì)量國(guó)家監(jiān)督抽查共計(jì)抽查107047家企業(yè)的112080批次產(chǎn)品，廣東省省級(jí)監(jiān)督抽查共計(jì)抽查18687家企業(yè)的20548批次產(chǎn)品（詳見(jiàn)表2），將抽查結(jié)果向社會(huì)、企業(yè)進(jìn)行公告，并召開(kāi)產(chǎn)品質(zhì)量分析會(huì)，督促企業(yè)進(jìn)行整改。此外，原質(zhì)檢總局和國(guó)家統(tǒng)計(jì)局從2006年開(kāi)始開(kāi)展上一年度制造業(yè)質(zhì)量競(jìng)爭(zhēng)力調(diào)查，至2016年共調(diào)查311萬(wàn)家次制造業(yè)企業(yè)。

“Miranda rules” in the trial of the United States comes from the adjudication in the case of “Miranda v.Arizona”.The case for the first time expressly specified that before the law enforcement officers question the interrogee,they should tell interrogee content of rights,namely “Miranda warnings”.Police more use psychological analysis,behavior analysis and other methods of interrogation.“The nine-step trial” John Reid summed up from the practice is representative.In 1957,the Supreme Court of the United States in the adjudication of case of Mallory v.United States,established “McNabb Mallory rules”,requires that after the arrest of the suspect,the police must transfer the arrestee to federal court “without unnecessary delays”.

In the United States,FBI set up a secret investigation committee in 1978,trying to actively regulate the implementation of the police encouragement through the establishment of institutional internal oversight body.In 1981,Department of justice of the United States developed the Guideline for the Secret Investigation.Under the premise of non-contravention of legal lawsuit principle of constitution and “Law of Entrapment”,this Guideline clearly stipulates the licensing criteria of the police encouragement,application procedures and the implementation period,realizing the regulation of police encouragement in form of legal system.

From the perspective of investigation terminology,the main reason why comparative study method is adopted as the main research approach lies in currently the lack of clear and unambiguous grasp of the specific problems related to the subject of investigation in China,the lack of a comprehensive and in-depth understanding on the international environment and overall trend of legalization of investigation,and the lack of targeted solutions to specific ways of legalization of investigation.Under this situation,a basic research work that is necessary to carry out is,through comparative research method,to draw experiences and lessons from foreign countries in this field,which can help us realize a more comprehensive and in-depth explanation and analysis of the current situation of investigation in China,and discover the problems that a blind eye has been turned to for a long time.

Notes:

〔1〕何勤華：《中國(guó)法學(xué)史》，商務(wù)印書館,2006年，第1頁(yè)。

〔2〕倪鐵：《法文化視角下的傳統(tǒng)偵查研究》,復(fù)旦大學(xué)出版社，2011年，第4頁(yè)。

〔3〕張晉藩主編：《中國(guó)法制史》，群眾出版社，1985年，第122頁(yè)。

〔4〕楊正鳴主編：《偵查學(xué)原理》，中國(guó)方正出版社，2007年，第37頁(yè)。

〔5〕楊宗輝、劉為軍：《偵查方法論》(修訂版)，中國(guó)檢察出版社，2012年，第35頁(yè)。

〔6〕何家弘：《外國(guó)犯罪偵查制度》，中國(guó)人民大學(xué)出版社，1995年，第8頁(yè)。

〔7〕何家弘：《從相似到同一 犯罪偵查研究》，中國(guó)法制出版社，2008年，第85頁(yè)。

〔8〕何家弘：《新編犯罪偵查學(xué)》，中國(guó)法制出版社，2007年，第42頁(yè)。

〔9〕陳永生：《域外法醫(yī)鑒定機(jī)構(gòu)設(shè)置的特征》，《國(guó)家檢察官學(xué)院學(xué)報(bào)》2010-02-10.

〔10〕何家弘：《美國(guó)檢察制度的歷史研究》，《法治論叢》1994-05-15.

In terms of investigation terminology,this paper uses the method of comparative study to grasp the specific issues involved in the investigation,and further understand the international environment and overall trend of legalization of investigation.To classify and compare Sino-US historical investigation terminology,through the analysis of the methods of investigation and investigation system,this paper tries to cover all of the investigation terminology;investigation management system is to ensure the coordination,agility,and effectiveness of investigation.Through the comparison of Sino-US organization system and procedure system of investigation,Sino-US investigation management system is studied;law enforcement standardization of police also reflects a kind of culture,and through comparative of Sino-US terminology of law enforcement standardization,valuable lessons can be drawn from this research.

investigation terminology;investigation management;law enforcement standardization

About the author：Wang Rui,the vice-professor of Nanjing Forest Police College,post-graduated students at East China University of Political Science and Law.

〔*〕One of the achievements of the special funds for the basic scientific research projects of the central universities (RWZD201501),One of the achievements of social science fund project in Jiangsu Province (14YYD004).