National Non-public Exercise Of The Powers Of The Rule Of Law

Based on secret investigation as an example, the dissertation discusses the non-public implementation of state power, and deemes that the non-public implementation of state power is an important operational way. With the development of the functions of the state, the public and non-public implemantation of the state power has a double-growth phenomenon. The public implemantation is a kind of public interests, the non-public implemantation is also a kind of public interests, or even an important benefit. But the implementation is not free from public regulation, otherwise a country's political will become a spy politics. From the perspective of the rule of law, the public and non-public implementation of state power is the value conflict of public freedom and order. In the context of globalization, freedom is very important, order and security is equally important, therefore we have to balance the conflict of freedom and order through the rule of law, and promote the coordinated development of the state and society. Secret investigation is the typical model of non-public implementation of state power in the Criminal procedure, with organized crime, victimless crime, invisible crime, computer crime and other new crimes emerging, secret investigation reflects a strong effect. However, because of the characteristics of secret investigation, there is a serious risk of infringement, its legitimacy has been widely questioned. The legislation, theoretical research and practical exists a serious disharmony problem upon the application of secret investigation system from the political field to criminal field, we have to re-examine the secret investigation issue corresponding in building a socialist country under the rule of law. The legalization of our secret investigation cannot be separated from China's legal tradition and legal culture of local resources, and can not simply transplant the system of Western countries, otherwise it will not be acclimatized, it will be impractical. Accordingly, based on our reality, the legalization of our secret investigation is carefully studied, and try to make a combination of theory and practice to increase the pertinence and effectiveness of the proposal.This dissertation consists of preamble, conclusion and five chapters, about 100,000 words.The preamble describes the writing background, keynotes, the main ideas and research methods. The first chapter is to introduce the concept of state power, state power sources, and the legitimacy of the secret implementation of state power. According to the sources of state power, the author believes that the beneficial concept of state power sources is the theory of contract and the legitimacy is harmless or non-harmful, combined with the nature of state power, the author proves the legitimacy of the non-public implementation of state power. On this basis, the author introduces the typical model of non-public implementation of state power in the Criminal procedure—the secret investigation, analyzes the concept, characteristics, types and properties of the secret investigation. The author deems that the rights of secret investigation is the executive power in nature, with great discretion, and is the focus of legal regulation.The second chapter focuses on the legitimacy of the secret investigation, mainly discusses the secret investigation and privacy, the secret investigation and residential rights, the secret investigation and personal autonomy, the secret investigation and the impartial jurisdiction, analyzes the potential impact of the secret investigation on these rights, further reveals the contradictions and conflicts in the back of the essence,the value conflict of freedom and order. To prevent the violations of basic civil rights by the secret investigation, the rights of secret investigation must be regulated.The third chapter introduces the historical development and the present situation of the secret investigation in foreign countries, especially the United States, Britain and Germany, analyzes the ssuccessful experience and methods on legalization of secret investigation in these countries. From their development, we can see that there is no uniform model of secret investigation system. A system must be made according to their cultural traditions and the actual situation of the development suited to their system. Each country has done a lot in how to prevent secret investigation from violating civil rights to the greatest extent. Meanwhile, the trend shows that they have drawn experience from each other in the process to secret investigation's legalization though they have different legal traditions.Chapter Four analyzes the secret investigation system in contemporary China. It is divided into two aspects: one is to conclude laws and regulations on secret investigation; the other is to analyze its practice during detecting process. Based on laws and practice, it is found that secret investigation system lacks not only institutions but more spirits from the perspective of legalization, which takes a long historical process.The fifth chapter introduces the legal construction of the secret investigation system with Chinese characteristics. Based on the analysis of the previous chapters, the author discusses in detail about the objectives, principles, path, and the main system of the legal construction of the secret investigation system with Chinese characteristics. It is emphasized how to promote the construction through justice of procedure in the context of a law culture of"entity first while procedure second"as well as a mindset of highly classified secret investigation in China.In conclusion, the author discusses the balance of value conflicts between freedom and order inherent in the national public and private implementation of secret investigation, in particular, emphasizes that with the social transformation in our present circumstances, the value of freedom is very important, but not the only value. In respect for diversity of social reality and individual freedom, it is more important to correctly handle the relationship between the implementation of state power publicly and secretly, effectively balance the national interests, social interests and the personal interests. To build a powerful nation is the well-being of the Chinese nation.