A Study On Inductive Investigation

Inductive investigation refers to the investigation mode in which law enforcement officers take certain inductive strategies so as to lure or incite a subject to commit certain crime, thus arrest the subject. It has become a common practice in many countries when investigating crimes such as drug dealings which have the features of covertness and good organization. Considering that this mode of investigation has the potential risk of infringing the subjects' lawful rights, some countries and districts regulate this practice through written law or case law. In our country, the problems in the inductive investigation practice are mainly as follows: lack of correct theories, lack of sound regulations, and lack of sound practice guidance. This is not only harmful for the protection of lawful rights, but also harmful for the control of crimes. During our process of "ruling under law", we should not allow this mode of investigation, which has great potential risk of infringing lawful rights, to operate beyond the regulation of law. To study the standardization of inductive investigation from the angle of procedural law not only has great theoretical significance, but also can meet the urgent need in practice. This thesis is threaded by the legalization of inductive investigation, and focuses its study on the standards of legalization and the handling of illegal inductive investigation. The whole thesis is composed of three chapters.The first chapter deals with the basic theories about inductive investigation. It tries to expound relative theories so as to accurately reveal the essence of this mode of investigation. This part analyzes the definitions of inductive investigation, and shows that it has three apparent features of positiveness, duplicity, and inductiveness. Based on the main opinions presently exist, this part divides inductive investigation into four categories, and differentiates some concepts which are often confused, such as undercover investigation, delivery under control, framing abetting, entrapment, etc. Although inductive investigation has potential risks, it is very important in the practice of fighting certain special crimes. This part probes into the theoretical basis for the justification of inductive investigation, and provides an answer to the two questions: whether inductive investigation is free investigation or enforcement investigation; whether inductive investigation actions should abide by the self-incrimination rule.Chapter two takes a look at the history of inductive investigation and makes comparison between such operations in different countries. It analyzes the development of inductive investigation in various countries from three levels: theory, system and practice. Through an introduction of the basic attitudes and approaches to inductive investigation in the world, this part tries to reveal some common ideas, so as to lay a basis for the legislation on inductive investigation in our country. As to inductive investigation in the United States, inductive investigation was ever broadly applied, and the judicial system was tolerant to this approach. This part discusses the transfer from private law interpretation to modern entrapment theory, and reveals the change of important ideas. Through an analysis of several significant cases by the U. S. Supreme Court, this part introduces the five new trends in the development of theories on inductive investigation: The focus in the legitimacy examination shifts from the subjective aspects of the defendant to the causal relationship; the approach to legitimacy examination shifts to comprehensive examination; law enforcement officers should form reasonable doubt before implementation of inductive investigation; tolerance of active interference to certain degree; attach more importance to the protection of the human rights of the defendant. As to the development of inductive investigation in the United Kingdom, this part introduces the two important stages of development from the 18^th Century, and makes a detailed introduction about the development of this approach since the Sang case in 1980. Taking the Loosely Case in 2001 as an example, this part introduces the key points on the legitimacy of inductive investigation in the United Kingdom: the necessity of inductive investigation; the appropriateness of inductive activities; the rightful purpose of inductive investigation; the causal relationship; the supervision and examination of inductive investigation. It summarizes the three features of the theories on inductive investigation in this country: the ultimate standard for legitimacy is embodied by a series abstract legal ideals; in individual cases, the court takes a comprehensive examination approach which takes many relative elements into consideration; balancing of interests plays an important role in judgment approaches, and is done through the free evaluationv of judges. Such aspects show that the United Kingdom still takes a pretty tolerant attitude toward inductive investigation, which indicates the disagreement between "written law" and "practical law". This part analyzes the reasons for such disagreement from the ideal level, approach level and the admissibility of evidence. As to the inductive investigation in Australia, taking its historical development as a clue, this part discusses the theories and practice in the pre-Ridgeway stage,the Ridgeway judgment and the post- Ridgeway stage. It emphatically explores the changes in the standards of legitimacy and the handling of unlawful inductive investigation. Moreover, this part takes a brief look at the theoretical features and practical conditions of inductive investigation in such countries-and districts as Canada, Japan, Germany, the Netherlands, France, Switzerland, Italy, Portugal, Hongkong, and Taiwan. Still, it analyzes the case Teixeira de Castro v. Portugal judged by the European Human Rights Court and the Model law on the control of drug-related offences issued by the UN in 2003, so as to explore the attitude of international laws toward inductive investigation. Through such historical angles, this part makes a comparison between the theories on inductive investigation in different countries, and expounds the four trends in the development of inductive investigation. For example, the legalization of this investigation approach; stress on the control of crime on the basis of protection of human rights, etc.Chapter three deals with the legalization of inductive investigation in our country. This is the conclusive part of the thesis. It makes a positivist analysis on the legislation and practice of inductive investigation in our country, and points out the four outstanding problems existing: first, the casual application of this approach needs reasonable limits; second, the lack of supervision on inductive investigation is harmful for the protection of the defendants' human rights; third, there exists no commonly acknowledged standards for the legitimacy of inductive activities; fourth, there is no effective remedial measures for unlawful inductive actions. This part puts forward a basic attitude toward inductive investigation in our country: first, we should admit the necessity and rightfulness of inductive investigation; second, we should promote the legalization of inductive investigation. In the judgment of the legitimacy of inductive investigation, based on an overall reflection on the subjective test, the objective test, the comprehensive test, it holds that we should apply the comprehensive test which evolves around the causal relationship, and expounds the eight principles of necessity, reasonable doubt, rightful purpose, limited subjects, reasonable activities, causal relationship, control of risks, supervision. Besides the general principles, this part pays attention to the practice in our country, and discusses the several special forms of inductive investigation, such as interlocking inductive investigation, continual inductive investigation, reverse inductive investigation, on-line inductive investigation, etc. On the proof of legitimacy of inductive investigation, this part deals with the distribution of burden of proof, and the establishment of standards of proof. It points out that we should promote the establishment of relative mechanisms, and reasonably deal with the relationship between the protection of public interests and such investigation approaches as secrete investigation, undercover investigation, and informer investigation. As to the handling of unlawful inductive investigation, we should apply different remedial measures according to the seriousness of illegality. When an innocent person is allured to commit a crime, in other words, when there exists causal inductive investigation, the accusation should be terminated and the accused should be sentenced non-guilty. In the cases in which the subject has a preponderance, we should mitigate the punishment on the accused, and when the crime is obviously petty, we should abate the punishment on the accused.