| This paper includes introduction and five chapters, more than 150 thousand words.Introduction points out that legislative regulation of obtaining evidence in covert investigation is the effective way in which striking crime and protecting human rights can accomplish simultaneously. As the important part of obtaining evidence in criminal investigation, practical necessity of obtaining evidence in covert investigation is well acknowledged by investigative practice in various nations. Current conditions of special crimes comprise: seriousness of social harm, well-organization of crime group, concealment and intelligence of crime means etc. Overt investigation is usually unsuccessful in striking special crimes, but obtaining evidence in covert investigation plays indispensable role by virtue of its own preponderance. Meanwhile, obtaining evidence in covert investigation may infringe on civil rights. As to constitutionality of human rights, obtaining evidence in covert investigation is confronted with severe challenge. In order for balance between striking crime and safeguarding human rights, criminal procedural law should acknowledge obtaining evidence in covert investigation.Chapter 1 explores basic content of covert investigation from five aspects. Research on obtaining evidence in covert investigation originates from and begins with covert investigation. Firstly, this chapter sets forth the definition of covert investigation. In order for smoothly obtaining evidence, searching and arresting suspects and collecting investigative intelligence, investigative intention should be held back to suspects and relative persons in course of covert investigation. Secondly, the author argues the structure elements of covert investigation as follows: subject, object, way and goal. Thirdly, based on various standards, this chapter discusses the classification of covert investigation. Fourthly, the author sets forth four traits of covert investigation, involving statutory procedure, application of investigative tactics, conducting covertly and in various ways. Covert investigation should conform to legal rules. However, there is difference in regulating distinct covert investigative acts. Investigative tactics are generally used in planning covert investigation. Suspects and relative persons know nothing in course of covert investigation. Ways of covert investigation are flexible and varied. The traits enable covert investigation to achieve legitimacy and effectiveness simultaneously. Lastly, this chapter focuses on comparative covert investigation, so as to examine covert investigation in international background and use the experience of other countries for reference. International tendency of covert investigation is concluded as follows: although covert investigation in different procedural models influences each other, they go their own ways ultimately. When constructing covert investigative system, every nation should respect minimum standards in international criminal justice and take into consideration respective social conditions. The conclusion is logical starting point of constructing the system of obtaining evidence in covert investigation.Chapter 2 studies on main acts of obtaining evidence in covert investigation. Covert investigation is the starting point of research on obtaining evidence in covert investigation, but obtaining evidence in covert investigation is genuine research objective. Study on obtaining evidence in covert investigation briefly comprises: acts of obtaining evidence in covert investigation and their outcome. Act of obtaining evidence in covert investigation is one kind of means of obtaining evidence, which are regulated by covert investigative system. Because of complication of covert investigation, acts of obtaining evidence in covert investigation are many and varied. The author adopts representative methodology and concentrates on four acts of obtaining evidence in covert investigation as follows: undercover operation, entrapment, application of confident informers and act of technologically obtaining evidence in covert investigation. Investigators' identity deception is the basic feature of undercover operation. In course of undercover operation, other acts of obtaining evidence in covert investigation are usually utilized. Undercover operation has obvious advantages in obtaining evidence; however, it seriously infringes on civil rights and imperils undercover agents' personal safety. Therefore, undercover operation should be confined in limited situation. In order that undercover operation effectively conducts, statute in some nations expressly exempts undercover agents from indispensable illegal acts. This chapter also explores entrapment, pointing out that its goal is to control crime not to fabricate crime. With regard to entrapment, judges consider whether investigators just offer crime opportunity or induce crime intention. The active/passive test is not fit for judges to solve the problem. Entrapment should be strictly regulated. Random moral test must be forbidden. Probable cause based on objective facts is the powerful proof of investigators' goodwill. As to illegal entrapment, judges will hold exclusion of illegal evidence and staying procedure. The author then states that confident informers offer investigative intelligence and sometimes take part in covert investigation. Confident informers are managed by investigators and their conduct is distinct from private covert conduct. Investigators bear responsibilities for the consequences of confident informers' conduct. In order for effective execution of covert investigation, some nations seek to exempt confident informers from indispensable illegal acts. In addition, investigators face on great risk when controlling confident informers. Personal safety of confident informers is also threatened. Act of technologically obtaining evidence in covert investigation is the combination of covert investigation and technological investigation. To deal with complex crimes, type of technologically obtaining evidence in covert investigation constantly varies. When regulating technologically obtaining evidence in covert investigation, the law tries to accomplish attacking crime and protecting human rights simultaneously. In course of technologically obtaining evidence in covert investigation, legislation and execution seeks to minimize the harm done to civil rights and guarantee the truth of the fact in issue. Though the ECHR repeatedly stressed that special investigative measures should conform to statutory procedure rule and proportionality rule etc. However, members of signatory states are subject to limited derogation.Chapter 3 analyses covert evidence from four aspects, which further demonstrates research meaning of this paper. At the outset, this chapter discusses main types of covert evidence as follows: real evidence, documentary evidence, visual materials, electronic materials, testimony and suspects' statement. The author then explores admissibility of covert evidence. When excising judicial discretion relating to admissibility of covert evidence, judges take into consideration three factors involving relevance, reliability and legality. These factors play guiding role in acts of obtaining evidence in covert investigation. Relevance and reliability is the foundation of admissibility. Legality implies that covert investigation should obtain evidence within legislative limits. It's widely accepted that not all evidence obtained improperly or illegally is inadmissible. Only when acts of obtaining evidence in covert investigation severely infringe on civil rights or judicial integrity, shall judges exclude covert evidence. Through examination on judicial practice of confident informers' identity disclosure, the author reveals dynamic balance between right to fair trial and public interests. As to legal consequence of illegal acts of obtaining evidence in covert investigation, this chapter emphatically explores exclusionary rule of illegal evidence, which is not the only way of legal relief. Comparing with staying procedure, exclusionary rule of illegal evidence is not enough to punish illegal investigative acts in special circumstances.Chapter 4 demonstrates legislative absence of obtaining evidence in covert investigation in our country and its detrimental influence. At present, legal rules on obtaining evidence in covert investigation mainly arise from national security law, police law and concerned regulations. Act of obtaining evidence in covert investigation doesn't fall within current criminal procedure law. Legislations and regulations in force have no procedural provisions concerned with obtaining evidence in covert investigation. As to legislative absence, evidential materials obtained in covert investigation merely serve as investigative clues. In practice, acts of obtaining evidence in covert investigation conduct before legal acts of obtaining evidence. Legislative absence of obtaining evidence in covert investigation leads to bad influence on ideal and practical level. On ideal level, current conditions hamper establishment and popularization of consciousness of legal investigation. On practical level, legislative absence is adverse to attacking crime and protecting human rights. Covert investigation is premeditated procedure, which results in the practical necessity of obtaining evidence once again. This situation directly hampers the raising of investigative efficiency and sometimes leads to investigative deadlock. In course of obtaining evidence once again, civil rights will be confronted with infringement a second time. Moreover, legislative absence is unfavorable to safeguarding investigators' personal security and deprives investigators of due right to official exemption.Chapter 5 elaborately discusses our country's legislative perfection of obtaining evidence in covert investigation from three aspects, which is the key of this paper and inevitable requirement on promoting process of investigation ruled of law. At the beginning, the author argues the feasibility and restricted factors on legal system of obtaining evidence in covert investigation. This chapter points out that the feasibility lies in maturity of foreign covert investigative practice and modification of current criminal procedure law. Mutual reference between things should not seek simple identification. Our system of obtaining evidence in covert investigation should respect minimum standards of international criminal justice and be constructed according to our own social conditions. The author sets forth restricted factors involving view of security value, view of priority to power and current constitutional framework. Next, this chapter explores basic theories on legal system of obtaining evidence in covert investigation. At present, acts of obtaining evidence in covert investigation should be regulated by criminal procedure law and other regulations. Criminal procedure law is the primary legislation in conducting acts of obtaining evidence in covert investigation. As official activity, the key to legal system of obtaining evidence in covert investigation lies in legal authorization. With regard to legal requirements on acts of obtaining evidence in covert investigation, this chapter emphatically set forth applicable scope, applicable object, probable cause and system of examination and approval. Authorized rules and prohibitive rules draw the outline of acts of obtaining evidence in covert investigation together. Authorized rules may be properly ambiguous, but prohibitive rules must be absolutely expressed. At last, the author argues legislative assumption on obtaining evidence in covert investigation. Legislative ways of criminal procedure law should combine expressed authorization with general authorization. Generally speaking, criminal procedure law regulates acts of obtaining evidence in covert investigation through two ways: firstly, legislative way of expressed authorization should be adopted when regulating undercover operation, entrapment and act of technologically obtaining evidence in covert investigation; secondly, regulation of other acts of obtaining evidence in covert investigation should adopt legislative way of general authorization. Act of obtaining evidence in covert investigation should be conducted only when overt investigative act is unsuccessful. As to applicable scope, undercover operation should be subject to strictest limitation and entrapment should be between undercover operation and act of technologically obtaining evidence in covert investigation. Undercover operation and entrapment should be internally examined and approved by public security organ. However, act of technologically obtaining evidence in covert investigation should be externally examined and approved by procuratorial organ. Moreover, act of technologically obtaining evidence in covert investigation has its own requirements on safeguarding civil rights, keeping secrets and preservation, use and destroy of evidential materials. Legislative perfection can't deviate from corresponding evidential rules, which are the genuine preposition of trial procedure. Main evidential rules comprise exclusionary rule of illegal evidence and hearsay rule. |
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