Between The Control Of Criminals And Protection Of The Human Rights

Wiretap, as an essential method of investigation, plays an important role against criminals. It is advantageous to the control of crimes. However it easily infringes the human rights, reasonable controls should be rendered .legalization wiretap is an effective approach to the proper usage of wiretap. In the latest years, some countries expect to keep balance between the beating criminals and protecting the human rights. We haven't legislated on wiretapping, and we are keeping use it as a secret investigation method. According to this situation, the wiretapping system faces several problems, i.e. whether the wiretapping should be legislated, how to legislate and how to solve the problems arising from the practicing. While answering these questions, I start my research on it. This paper makes some assumptions that for we haven't legislated on wiretapping yet, so in any case, solving these questions has important significance to the theory studying of the wiretapping and directing the wiretapping system.Research on the wiretapping system has six aspects in this paper .The first aspect includes definition of and analyzing the elementary problems. To define the conception of the wiretapping is the initial research. In broad sense, wiretap is the action of intercepting the word information in all kinds of ways, it includes wiretapping as the method of criminal investigation, one of the parties agrees to be wiretapped and the client private record. Wiretap is classified into interception ofwire communication, interception of wireless communication and interception of oral communication. Of course this is one of the ways to classify the wiretapping. Wiretapping is compulsive measure or free measure, whatever difference among wiretap and others method, to solve these problems help to define the quality of the wiretapping. I consider the wiretapping is a mandatory method for investigation of criminals. With the developing of the science and technology, the technology of wiretapping is also developed quickly, to know it well is benefit to comprehend the action, quality and effect of wiretapping. The second, the wiretap is reasonable in practice and is allowable in jurisprudence, but at the same time, wiretap is dangerous and it embodies several situations, mostly wiretapping is easy to evolvement tool of the politic contention, threatens the elementary rights of citizens, breaks the normal order of the society and causes the puzzle of judiciary ethics. For these reasons, wiretapping need legalization and can not be used freely, whether we consider it help to beat criminals and protect the human rights, or the requirement of procedure legalization.The second part is about generation and development on wiretapping system. Through study of these contents we can know the history of the wiretapping. There are several backgrounds on the birth of the wiretapping system. First, the development of science and technology provides the possibility of the wiretap; The independence of the investigation unit promotes the using of wiretapping in the criminal investigation; the theory of privacy rights generation and developing provided the support for the wiretap system constructing; the wiretap widely using promoted the birth of the wiretapping system.-American's wiretapping system is the earliest birth and one of the most perfect systems in the world, so to study it helps to know the development of the wiretapping system of American as well as of England, German and Japanese. At the same time, we should study the relative provisions of the international law. At present time, there exist three modes of wiretap system, controlling crime mode, protecting human rights mode and balancing rights mode. Protecting human rights mode emphasizes to protect human rights between the crime controlling and human rights protection, the conditions of its usage are strict,the scope is narrow and the supervision is stringent in the wiretap law. Controlling crime mode emphasizes to find out the truth of fact, investigation unit has more power to investigate the crime, and this type pays less attention to protection of human rights. Balancing rights mode, whether to use the wiretap or to confirm the qualification of evidence, abides by agility principle. We should protect the human rights while strengthening beating crime, and struggling to keep balance between the crime controlling and human rights protection. There exist three kinds of trends, namely wide legalization on the wiretap system, gradually enlarging the scope of the wiretap and differentiation of the wiretap system.The third part mainly studies the basic content of wiretap law. The basic principle includes all the principle used in the compulsive measures, such as the principle of legal procedure, judicial censorship, proportion and order in writing. The special principles of wiretap include felony principle, relevance principle, period principle, appropriate opening principle, protecting the privacy rights principle a. \:dicial rectification principle. There also exist exceptions ,for example ,emergency wiretap, an emergency situation exists that involves the following(l)immediate danger of death or serious physical injury to any person, (2)conspiratorial activities threatening the national security interest, or(3)conspiratorial activities characteristic of organized crime. The basic procedures of wiretap include the conditions and objects of wiretap, exercise procedure of wiretap, supervision procedure and the responsibility of illegal wiretap. The convention wiretap is different from the wiretap on the crime of threatening the national security interest, Cthe-Foreign Intelligence Surveillance Act of 1978)) of United states prove this point, the conditions of wiretap application is less strict. There exist conflict between wiretap and the principle that no person shall be compelled in any criminal case to be a witness against himself, the conflict also exists between wiretap and the rule of privilege, how to deal with it, we should reasonably treat it.To study the admissibility of illegal wiretap evidence is in the fourth part. The illegal wiretap evidences are those evidences that are obtained through violating thelegal procedure, principle of wiretap or the essential conditions. There exists a big gap among the different countries on the admissibility of illegal wiretap evidence. This paper emphasizes analysis of the admissibility of illegal wiretap evidence of the United States, Germany and Japan as well as other countries. There are various situations in the practice, so there are some special situations needed to be studied, for example, wiretap accidental, beforehand wiretap, wiretap in other cases, wiretap in the house and pursuing the source of the voice etc .It has strong practice significance in defining the special situations legal or illegal and to solve the problem on the admissibility of illegal wiretap evidence. Our country should provide the admissibility of illegal wiretap evidence, and the illegal wiretap evidence obtained through serious unlawful method should be excluded.The mainly content is to study several special types of the wiretap in the fifth part, include internet surveillance, one of the parties agrees to be wiretapped and the client private record, these wiretaps are different from the ordinary wiretap. There are three differences between the internet surveillance and the conventional wiretap, (l)internet surveillance used in the practice has wider scope, deeper degree and infringes the privacy rights more deeply than the conventional wiretap;(2)internet needs more advanced technology and more units' cooperation,(3)controlling the internet surveillance infringement is more difficult. There are special requirements for its special character. When one of the parties agreed as a free measure in the crime investigation, investigate organizations can avoid the fussy procedures and the strict conditions, so it is convenient to investigate, but at the same time, easy to infringe the other party's right, for this kind of wiretap has not get the other party's allowance, this conflict inherent exists in this kind of wiretap itself. But the wiretap has the legal justice; the conflict can be solved by defining its legality or illegality. The private wiretap is the individuals' intercept to the other persons' communication; it includes the third party to wiretap the other two parties and one of the parties' private records. This kind of wiretap is reasonable measure to investigate crime in our country, for the ability of our investigation units is not enough.There are some suggests about wiretap lawmaking in the sixth part. The lawrelated to wiretap is very simple in our country; the wiretap is far less effectively constrained by law. There exist several problems : (l)there is no legal procedure concerning wiretap using; (2)there is no independent organization to censor wiretap exercises; (3) the prosecution unit has no right to wiretap; (4) the client has no way to get rectification; (5) the wiretap data can not act as a evidence to use at court. But the wiretap is necessary, and it should be legalization for three reasons, one is to meet the requirement of beating crime, the second is to protect the human rights and the last is the requirement of the investigation procedure. The concrete suggestions include the type of legislation, the scope of wiretap application, the essential conditions, and the procedure of wiretap, the utilization and handling of the wiretap data, the illegal wiretap rectification and the report system.