Invalid photo card is not the reason for shoplifting ... (from the US Winter Haven Police Facebook)
Arranged for shoplifting diapers, but ... American fathers are flooded with offers of support from citizens!
If you write the contents roughly
Wal-Mart has also signed a withdrawal of the damage report.
A US man who came to a supermarket to shop for diapers with a toddler was shoplifting because he couldn't use his credit card. ... → Continue reading
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The investigation is also conducted to carry out the prosecution (common theory).. However, in countries that have a jury system (jury procedure), even tentative charges can be prosecuted, but in Japan and other countries where this is not the case, prosecution without certain charges is traditionally not allowed as an abuse of the right to prosecute..
The investigation is conducted on the premise of a crime.. Since a crime is about to occur, the act of preventing and stopping it is not the exercise of judicial police power, but the exercise of administrative police power, not an investigation, even if it is an act of a police officer... In addition, the investigation is carried out by an investigative agency, and complaints from crime victims are the beginning of the investigation, but not the investigation itself..
Guidance philosophy of investigation
The principle of fairness and fairness
The principle of fairness and impartiality is that the right of investigation is carried out in a fair and honest manner, because the investigation reveals the truth of the case while maintaining the public welfare and respecting the basic human rights of the individual. The principle that it must not unreasonably infringe on the freedom and rights of.
The investigation can involve the exercise of powerful authority such as arrest and search, and the parties concernedhuman rightsHas a strong influence on (Infringe human rights(It can be), so be strict by lawRegulationBe (must be).. An investigation conducted by an illegal means or method is called an illegal investigation.
Principle of voluntary investigation
The principle of voluntary investigation means that the investigation should be based on the premise that respect for basic human rights should be taken into consideration, and that the investigation should be in a form with little infringement of human rights..
Principle of smuggling
The principle of smuggling is that the investigation is to guarantee the basic human rights of the persons involved in the case, and also to prevent the destruction of evidence and the escape of the criminal due to the leakage of the investigation contents to the outside... However, in some cases, some of the investigation information may be disclosed to the public for widespread cooperation... (Public investigation)
Evidence investigation principle
What is evidence investigationism?ConfessionIt means to avoid the overweight of the case, collect all the evidence properly, and complete the investigation by its rational comprehensive power (to clarify the facts by the evidence)... The investigation is in response to changes and progress in society.Forensic medicine-Psychology-physics-Chemical-engineering-PsychiatryWith the help of such, it is gradually strengthening the character of forensic science..
Investigation in Japanese criminal procedure
Investigation structure theory
Inquisitorial and impeachment investigations
- Inquisitorial view of investigation
- The idea is that all investigation activities are carried out by the executive body, and the suspect is nothing more than the object, and the suspect is not in the position of one party. Under the old Code of Criminal Procedure before the war, investigation activities and trial maintenance were carried out based on this idea. The idea is that the state has a strong aspect of fact-finding activities.
- Impeachment view
- Even in the investigation stage, the investigative agency and the suspect vie on an equal footing, and the idea is that the clarification of the facts is based on the proceedings in the court, and the postwar criminal procedure adopted this impeachment legal system. is there.
It is not a matter of adopting either way of thinking, but it is necessary to clarify the facts, prevent crimes, and harmonize with respect for human rights. In addition to the above two model theories, there is a proposal for an original investigation structure called a litigation investigation view (investigation uniqueness theory).
Uniqueness of the investigation
The conventional wisdom regards investigations as "preparatory nature of trials", but this conventional way of thinking regards only investigative agencies as the subject of investigations, which is not in line with the current Code of Criminal Procedure, which is based on adversarial system. , Not only the investigative agency, but also the suspect's side is said to have a structure that is in opposition to each other as the main body of the investigation... In the theory of uniqueness of the investigation, the purpose of the investigation is "to clarify the existence of facts for deciding whether to prosecute or not prosecute", and the suspect side also collects evidence and excuses from the stage of the investigation procedure before the trial. By carrying out defensive activities, the suspect side is also the "subject of the investigation" along with the investigative agency, so it is the view to denounce the investigation procedure..
In addition, practitioners have expressed the view of re-questioning the purpose of the investigation from a different perspective than the above-mentioned theory of uniqueness of the investigation. The practical effect of the investigation itself is important because the investigation activity plays an admonition role to the criminal, alleviates anxiety for society and gives satisfaction that justice has been done. , It is said that it cannot be ignored. In addition, as a matter of fact, it has been questioned whether the criminal investigation is aimed at "file a prosecution and maintain a trial" from the beginning. Investigative activities may be carried out even if the litigation conditions are not met (see below).Tolerance of investigation in case of lack of litigation conditions(See) Therefore, it is said that attention should be paid to the functions of the investigation activity itself, such as judgment of suspicion and elucidation of cases. According to it, an investigation to determine the case or suspicion, which is the stage before the prosecution is filed, can be conducted, and prior to that, activities aimed at "file a prosecution and maintain the trial" are carried out. It is said that it does not fit the reality. Therefore, there are criticisms that the idea of limiting the purpose of the investigation to the traditional "file of prosecution and maintenance of trial" is unreasonable and lacks the need to limit it. Not only the investigation for prosecution, but also the investigation to resolve the suspicion of the suspect and confirm that he is not the criminal, and the investigation activity to postpone the prosecution, that is, not prosecution but non-prosecution. An investigation is also underway. In this way, it is narrowly lost that the purpose of the investigation is only to file a prosecution and prepare for execution. Rather, it is simply "discovering the truth including improvement and rehabilitation of the criminal, and realizing justice. It is also argued that it is more correct to say that it is in "the arrest of the criminal and the collection and preservation of evidence"..
Police officials have criticized that limiting the purpose of police investigations to "preparing for prosecution and maintaining trials" deviates from actual investigation activities. According to this, in reality, police investigation activities themselves have functions such as prevention and suppression of crimes, rehabilitation of criminals, and maintenance of a peaceful social life. The police investigation, which is also responsible for the prevention and suppression of crimes, is separated from the investigations conducted by other investigative agencies.Police investigation"For the protection of personal life, body and property, the preparation and execution of prosecution, and the maintenance of public safety and order, we will discover and collect evidence, collect and analyze criminal information, and the criminal. There is a view that defines it as "an activity to control and find and secure suspects.".
The investigation is carried out by an investigative agency.Criminal procedure codeThe investigative agencies stipulated by the government are as follows.
- GeneralJudicial police officer(=Police officer) (Code of Criminal Procedure, Article 189, Paragraph 2)
- Special judicial police officer(Judiciary police officers other than police officers) (Article 190 of the Code of Criminal Procedure)
- Prosecutor(Code of Criminal Procedure, Article 191, Paragraph 1)
- Prosecutor's office(Code of Criminal Procedure, Article 191, Paragraph 2)
In most cases, judicial police officers are in charge of the investigation as the primary investigative agency (Criminal Procedure Code, Article 189, Paragraph 2). The investigation in this case is synonymous with judicial police activities because the prosecutor is not in charge, and is mainly aimed at crime prevention activities.Administrative police activitiesIs distinguished from. However, the regulations of both laws often overlap (for discussions on the distinction between judicial police activities and administrative police activities,Administrative police activitiesSee).
In addition, as a secondary investigative agency, the prosecutor can give necessary instructions and supervise the investigation of the judicial police officers, and supplement if the investigation conducted by the judicial police officers is inadequate. The investigation can be conducted from the standpoint (Criminal Procedure Code, Article 191, Paragraph 1).The prosecutor's right to investigate is not secondary, but has his own right to investigate, so-called "Tokusou DepartmentIn some cases, the prosecutor who belongs to ", etc." is in charge of the investigation directly (Prosecutor's right to investigatereference).
Beginning of the investigation
The investigation is started when the investigative agency considers that there is a crime (Criminal Procedure Code, Article 189, Paragraph 2, Article 191, Paragraph 1). What causes the investigation to start ("The beginning of the investigation" (Code of criminal investigationChapter 2)) includes the following.
- Charges/accuses(Articles 230 and 239 of the Code of Criminal Procedure, Article 63 of the Code of Criminal Procedure)
- Self(Article 245 of the Code of Criminal Procedure, Article 63 of the Criminal Investigation Code)
- damage report(Article 61 of the Criminal Investigation Code)
- crimeThose who think that they have suffered fromPolicemenSuch asInvestigation agencyReport todamage reportTo say..It merely declares the fact of the damage and seeks the criminal charge.ChargesDifferent from..Those who have been victims of theft of gunpowder or guns are obliged to submit a damage report (the legal name is "accident report") (Explosives Control LawArticle 46 paragraph 1,Gun sword methodArticle 23-2), there is no such obligation for the damage of other crimes.
- Autopsy(Article 229 of the Code of Criminal Procedure)
- Job question(Article 2 of the Police Officer Duties Execution Law, Article 1 of the Criminal Investigation Code)
- Guard(Articles 19 and 25, Criminal Investigation Code Article 59)
- Current offenderDiscovery of a person (Article 212 of the Code of Criminal Procedure)
- Automobile OfSimultaneous inspection(It was recognized that it is different from the job question according to Article 28, Paragraph 3 of the Regional Police Management Regulations, Saisho 55.9.22)
- Articles in newspapers and other publications, information provided via the Internet, anonymous declarations, rumors and other widespread social events (Article 59 of the Criminal Investigation Code)
- Others (Investigation of other cases,Sneak notice,Reputation,News report, Letter to the editor, etc.)
Forced investigation and voluntary investigation
Investigations are divided into forced investigations and voluntary investigations.
- Forced investigation
What is a forced investigation?Forced disposalRefers to the investigation by. The specific content of the forced investigation isSuspectTo secure the personality ofArrest-detention,evidenceTo securesearch-Seizure-Verificationand so on.
Regarding compulsory disposition, the judicial precedent is
It does not mean a means that involves the exercise of tangible power, and unless there is a special basis provision such as an act of suppressing the will of an individual and forcibly realizing the purpose of the investigation by restricting the body, housing, property, etc. Means that are not reasonable to tolerate— Supreme CourtThird Small Court Decided on March 51, 3
The part of this case that "does not mean a means that involves the exercise of tangible force" is based on the theory that the conventional method of using tangible force is compulsory disposition.DefendantIn response to the claim, "Means that are not appropriate to tolerate without special grounds"Compulsory disposal statutory principleNatural consequences fromtautology), Therefore, it is considered that the essence is that it is an investigative means that infringes important rights and interests (contrary to the will of the person to be disposed of) (common theory). However, there is strong legal criticism that the jurisprudence requires the requirement that "a means that is not appropriate to allow without special grounds".
On the other hand, the view that all infringement of rights and interests, even if not important, is compulsory is also argued in connection with the so-called "new compulsory disposition theory". The new theory of compulsory disposition is the view that even compulsory dispositions not stipulated by the Code of Criminal Procedure should be tolerated if the warrant-based request is substantially met. There are criticisms that this view is not possible as an interpretation of Japanese law, apart from the legislative theory or the interpretation of American law under Article 4 of the Federal Constitutional Amendment.
If a forced investigation is conducted illegally, whether or not the evidence obtained in the investigation has evidence capacityIllegal Collecting Evidence Exclusion LawIt becomes a problem of.
- Voluntary investigation
What is a voluntary investigation?Voluntary disposalSay an investigation by. Voluntary disposal refers to disposal other than compulsory disposal, and in the general sense, "anyThe nuance is slightly different from the word.
In principle, the investigation is voluntary and does not require any special legal basis.Therefore, regarding voluntary disposition, the limit of voluntary investigation is discussed as an important issue.
Tolerance of investigation in case of lack of litigation conditions
Litigation termsIs, under the Code of Criminal Procedure, pursuing a prosecution, substantive trial of the casetrialOf these, the legal requirements for prosecution (indictment) are also called prosecution conditions.
In either case, neither prosecution nor trial maintenance is possible.
Then, can we investigate if we lack the conditions for litigation or prosecution?
If the definition and main purpose of the investigation is to file a prosecution (decision to prosecute or not prosecute) and maintain the trial, the purpose of the investigation cannot be satisfied because neither the prosecution nor the trial can be maintained. Therefore, there is room for interpretational debate as to whether it is possible to conduct an investigation even in such cases.
However, the terms of the lawsuit are different from the terms of the investigation. In addition, for example, even if the criminal dies after the crime, it cannot be left as it is, and since it is necessary to handle the case, it is understood that an investigation within a reasonably reasonable range is permitted. ing.
In addition, it is necessary to carry out a compulsory investigation "when the litigation conditions are completely lacking" (a) whether the request for clarification of the case is not so strong (strength of public interest) or (b) infringe the interests of the subject. Since it is small (comparative with the infringed legal interests), it should be avoided as much as possible.
Investigation in the Criminal Procedure of the International Criminal Court
Beginning of the investigation
International Criminal CourtIf you believe that you are committing a crime subject to the Rome Statute ofUnited Nations Security Council(UN Security Council) and States parties refer the situation to the public prosecutor (Rome Statute of the International Criminal Court, Articles 13 and 14).. In principle, an investigation should be conducted on the referral situation, and the referee must be notified when the investigation is to be stopped due to lack of sufficient grounds (Rome Statute of the International Criminal Court, Articles 13 and 53). 2).
The prosecutor may initiate the investigation on his own initiative, but if there is a reasonable reason to continue the investigation, he must request permission from the prosecutor's office..
The UN Security Council may request by resolution not to start or continue an investigation or prosecution for 12 months, and this request may be renewed (Rome Statute of the International Criminal Court, Article 16)..
Performing an investigation
In principle, the investigation is conducted with the cooperation of the state, and the prosecutor of the International Criminal Court conducts the investigation directly only when there is no domestic institution capable of fulfilling the mission (Rome Statute of the International Criminal Court, Article 57). 3d).
For situations referred by the UN Security Council, the UN Security Council may exercise the powers of Chapter VII of the Charter of the United Nations even against non-parties (see Article 7, 87 of the Rome Statute of the International Criminal Court)... In this case, the International Criminal Court can also refer the issue of refusal of cooperation of the State party to the UN Security Council (Rome Statute of the International Criminal Court, Article 87-7)..
- ^ a b c Britannica International Encyclopedia "Investigation"
- ^ a b c Kazuo Kawakami & Hiroshi Kawamura 2012, p. 8.
- ^ Kazuo Kawakami & Hiroshi Kawamura 2012, p. 10.
- ^ a b c d Kazuo Kawakami & Hiroshi Kawamura 2012, p. 11.
- ^ Kazuo Kawakami & Hiroshi Kawamura 2012, p. 12.
- ^ a b Kazuo Kawakami & Hiroshi Kawamura 2012, p. 13.
- ^ Wazaaki Ishikawa"Defense function in investigation" (Nihon Hyoronsha)
- ^ Akira Idota"Intersection of criminal proceeding theory and practice" Yuhikaku
- ^ Takeshi Tsuchimoto"Crime Investigation" Kobundo
- ^ Hidehiko Sato"The Resurrection of Security" (Tachibana Shobo)
- ^ a b c Britannica International Encyclopedia Subitem Encyclopedia. “damage report”(Japanese). Koto bank. October 2021th, 8Browse.
- ^ Article 31 of the Constitution, Article 197, Paragraph 1 of the Code of Criminal Procedure
- ^ Article 197, Paragraph 1 of the Code of Criminal Procedure
- ^ a b c Shinya Murase & Keiko Hong 2014, p. 235 "Characteristics of ICC Criminal Procedure" by Kanako Takayama
- ^ Shinya Murase & Keiko Hong 2014, pp. 235–236 “Characteristics of ICC Criminal Procedure” by Kanako Takayama
- ^ Shinya Murase & Keiko Hong 2014, p. 236 "Characteristics of ICC Criminal Procedure" by Kanako Takayama
- ^ a b Shinya Murase & Keiko Hong 2014, p. 237 "Characteristics of ICC Criminal Procedure" by Kanako Takayama
- Kazuo Kawakami, Yoshifusa Nakayama, Yuki Furuta, Kunio Harada, Hiroshi Kawamura, Sakiko Watanabe, ed., "Large Commental Criminal Litigation Law, Volume 4, Volume 189 (Articles 246-XNUMX)"Seirin Shoin,Year 2012
- Shinya Murase and Keiko Hong, "International Criminal Court-Judging the Most Serious International Crimes, Second Edition," Toshindo, 2014
- Ryuichi Hirano "Criminal Litigation Law" (Yuhikaku)
- Atsumi Toyo "Criminal Litigation Law" (Yuhikaku)
- Osamu Ikeda / Masahide Maeda "Criminal Litigation Law Lecture" (University of Tokyo Press)
- Hiroshi Tamiya "Criminal Law in Change" (Yuhikaku Publishing)
- Hiroshi Tamiya "Structure of Investigation" (Yuhikaku Publishing)
- Hiroshi Kumagai / Koya Matsuo / Hiroshi Tamiya ed., "Investigation Hosei University", all three volumes (Nihon Hyoronsha)
- Tokio Hirara "Investigation Law" (Seibundo)
- Takeshi Tsuchimoto "Crime Investigation" (Koubundou Publishers)