Study Of The System Of Criminal Physical Examination

Criminal physical examination (hereinafter referred to as physical examination) is also known as personal examination or forensic medical examination of living persons. It is an activity in which investigators investigate and obtain evidence by examining body surfaces or collecting body samples in criminal procedure.This measure has played an important role in criminal investigation, especially with the intensive application of modern medicine technology such as DNA identification in it. Physical examination plays a role that other investigation measures can not do in identity recognition and biological trace intercomparison, and brings the change to investigation methods. But, as other investigations, physical examination is also like a double-edged sword. On the one hand, it brings out convinience to criminal investigation; on the other, it constitutes a threat to civil rights and interests, and what’s more physical examination is taken directly to a person’s body, so the potencial threat to a citizen’s right of privacy and right of body caused by it is more obvious than that by other investigations. Therefore, currently many courtries and regions in the world stipulate physical examination in the criminal procedure law as one of important parts and establish the system of physical examination with its own characteristics.As far as our country is concerned, although the current criminal procedure law provides the relevant regulations on physical examination, they are simple and inattentive. The deficiency in legislation results in a series of problems in legal practice, which go against right protection and crime control. In the process of promoting rule by law, it is obvious that this investigation measure at the risk of infringing some rights can not be tolerated to be in the state of loss of norm any more. Therefore, study of the legal regulation of this investigation measure from a procedure law perspective is not only of theoretical significance but is in urgent need for practice. On this background, the author chooses " System of Criminal Physical Examination " as the subject of the dissertation.This dissertation, taking the legal improvement in the system of physical examination as the main line, unfolds itself around three key problems--- the jurisprudential basis, design and practicing situation of the system so as to achieve the following objectives:firstly, to probe into the basic theoretical aspects relating to the system in order to more accurately and comprehensively grasp the essence of this investigation means and to lay a theoretical foundation for improving the system in our country; secondly, to describe the basic experience concerning legislation of physical examination adopted by the main countries and regions ruled by law and to explore the common idea and development trend of its legislation in order to provide references for improving the system in our country; thirdly, to conduct an empirical research into the current situation of the system in our country, analyze the necessity and feasibility for improving the system and further propose its own opinions on improving the system in our country. The whole dissertation is composed of four parts, excluding the introduction.Chapter one discusses four aspects of physical examination in order to lay a theoretical foundation for research into the system of physical examination. The research into the system starts from physical examination, so the first part in this chapter describes the basic construction of it in three aspects of range, nature and type.This part firstly defines the range of physical examination in the present research and points out that physical examination is an activity in which investigators investigate and obtain evidence by examining body surfaces or collecting body samples in criminal procedure, that is, the range of physical examination includes examination of body surfaces as well as collection and application of body samples.Then this part comes to another problem after defining the range, that is, how to understand the nature of physical examination. With respect to this aspect, the author analyzes the standards differentiating compulsory investigation from consent investigation and points out the double attributes of physical examination. Based on that, the author discriminates physical examination from three kinds of criminal procedure measures--- personal search, inspection and identification that overlap the former in nature or function so as to grasp the basic attributes of pysical examination.According to different standards, physical examination can be divided into physical examination of the accused and the third party, examination of body surface and in vivo examination, private examination and non-private examination, examination for case study and examination for database building. Thus, this part makes a classified study of physical examination and the study is to understand the reason and purpose for raising a claim for different procedures to different pysical examinations.There should be no objection to considering physical examination as means of evidence-collecting. And evidence has two implications:one is as evidentiary material, which refers to subjective impression trace and objective material trace; the other as evidential method, which refers to methods and means by which evidentiary material is sought and applied in litigations. But is there any difference between the display form of evidentiary material that is obtained with different physical examinations and evidential method? This question will be also explored in this chapter.In this part, the author describes the methods of physical examination and analyzes the display form of evidentiary material that is obtained with the above-mentioned methods and evidence attributes as well. On the whole, physical examination can be divided into examination of body characterization and sample extraction of physical trace, tissue, body fluid and so on. According to different examining methods, the display form of physical examination material can be classified into physical examination record and body sample. Physical examination record belongs to documentary evidence in the sense of evidence attribute and it usually refers to written records in litigations. And body sample is in essence physical evidence, but it is a kind of microexhibition and such a characteristic determines that it usually displays the evidential information that it contains with the aid of identification, thus, body sample exists in the form of identification conclusions(by experts) in litigations. The significance of analyzing the attributes and characteristics of physical examination material lies in understanding the function and position of physical examination in criminal procedure. In modern society, designing procedure has no more than two purposes:to regulate power so as to guarantee its reasonable excersise and to safeguard right so as to maintain the citizen’s autonomy, and in this respect, the system of physical examination is no exception. The emergence and development of the system is closely related to the correct exersise of state power and guarantee of the citizen’s right. Different interpretations of the relationship between the two sides will inevitably influence the design of the system.Therefore, based on the previous analysis, this chapter also explores the relationship between right of physical examination and the citizen’s right in order to discover and explain the value ideas contained in the system design. In the sense of nation, the system of physical examination is a historical product of criminal procedure development and it adapts itself to change of people’s crime concept and constant perfection of social control means by a nation.At the end of this chapter, the author investigates the basis and development vein of the system and further analyzes as well as sums up the characteristics and development trend of it, reaching the conclusion that the system must be constantly adjusted and improved in line with practical conditions, which is the ending point of the dissertation, and also is the logical starting point for modifying and improving the system.Chapter two compares legislation of the system in the main countries and regions ruled by law and further sums up its common basis and development trend in order to provide references for improving the system in China. This chapter unfolds itself around legislative mode, procedure of physical examination and relief mechanism of illegal physical examination.As far as legislative mode is concerned, different countries have different legal orientations because of different litigation results and legislative traditions. To be specific, there are mainly three legislative modes and they are search mode, subordinate mode and independent mode. In this chapter, the author examines the causes and characteristics of the three modes in the hope that special emphases on the design of the system under different legislative modes are explored.Furthermore, this chapter reviews the specific provisions of physical examination procedure around reasons for starting physical examination, procedures of examination and approval for it, implementing requirements of it, DNA Dragnet, the examinee’s right guarantee and treatment of examining materials. Meanwhile, the basis and developmental characteristics of physical examination procedure are explored in this chapter, which is the focus of this part. As the saying goes, " There is right, there is the relief." In order to ensure that the citizen’s legal rights can not be infringed by the investigation organ’s abuse of pysical examination right, it is necessary to establish relief mechanism aiming at illegal physical examination.Finally, this chapter takes an overall evaluation of legislation on the physical examination system in the above-mentioned countries and regions, and sums up the common basis and development trend of the system in order to provide references as well as enlightment for examining the current situation of the system closely and improving it in China.Chapter three looks closely at the current situation of the system in our country and its existing problems both in legislation and in practice, and analyzes as well as explains the problems. In this chapter, the author firstly reviews legislation on the system in China and points out the main problems in legislation on it. The investigation of the current situation in practice is the key part in this chapter and it covers method of physical examination, type of cases applying physical examination, starting of physical examination procedure, object of physical examination, implementation of physical examination, restriction of physical examination right and relief for illegal physical examination. In order to restore the real situation of physical examination in practice in China as comprehensively as possible, typical case analysis combined with empirical survey is adopted in the investigation.Moreover, this chapter indicates the problems exsisting in the system in our country and makes an evaluation of the current situation of it. In general, the problems can be summarized as three aspects:one, legal authorization for physical examination is not so clear; two, the exercise of pysical examination right lacks effective restriction; three, guarantee of the examinee’s right is insufficient. These problems lead to weak or even nominal guarantee of human rights and a trend that practice of physical examination in China puts undue emphasis on crime control grows. This condition is far from the need of contemporary countries ruled by law. Thus, a conclusion that it is necessary to improve the current system of physical examination in China is drawn at the end of this chapter, which also reveals the realistic reason for the present research.Chapter four makes an exposition of legislative improvement in the system in China in three aspects, which is the ending point of the research. This chapter firstly proves the necessity and feasibility of improving the system. It points out that China has moved from lawmaking era to era of amending law with the constant advancing of rule by law. Under this background, the current criminal procedure law has a historical opportunity of being amended and only by improving the specific provisions of the system can the criminal procedure law of China get an overall development. The improvement in the system is both an inevitable trend in legal development and a timely response to current demands.Then, the author analyzes the obstacle factors in improving the system in order to make the suggestion given more practical and more reasonable.Finally, the author gives the idea and way to improve the system on the basis of the previous study. A basic principle in improving the system is to establish a value orientation. Additionally, the legislative reform of the system must be carried out step by step owing to the condition of our country. Hence, the reform can be carried out by stages and in a gradual way. The long-term target is to completely separate the right of deciding to employ physical examination from that of implementing it, that is, the right of starting the physical examination more likely to infringe the citizen’s right and the relief right of illegal physical examination can be transferred to the neutral judicial organ, namely the court. The short-term target is to maintain the power allocation model in the current system framework, which is the precondition for improving the system, and to regulate the exercise of pysical examination right through solving the urgent problems. To be specific, the improvement in the system should be made on the condition that the original legislative mode remains unchanged and its improvement includes:to classify pysical examination; to define the object of physical examination; to limit the starting condition for physical examination; to clarify the examination and approval mechanism of pysical examination; to regulate the procedure of physical examination; to strengthen guarantee of rights in physical examination and to improve the related system. For the suggestion made, this chapter demonstrates the bases for giving and carrying it out so as to make it clear and feasible.