Research On Gathering, Examination, And Ascertainment Of Evidences Of Organized Crime

As a special type of crime, organized crime has been characterized by "dual constituted crime" on the structures of crime and by "dual prove" on the proof system. Therefore, the public security and judicial authority collect evidence and review it by ways different from ordinary criminal cases. A series of in-depth researches on this subject have been conducted by scholars in order to provide theoretical guidance and intellectual support for the criminal judicial practice, but they are not systemic.From the legislative and mechanism construction perspective, many issues still exist——this fact bring about lots of difficulties when the public security and judicial authority collect and review evidence of organized crime. Further, since organized crime has rigorous organization, violence, anti-detection, strong concealment, large temporal span,and the offenders always seek asylum umbrella, the investigation organization often in a jam when it comes to collecting evidence. Meanwhile, the judiciary is short of corresponding rules of evidence to support the evidence review of organized, and judicial officers are divided about the understanding of the ability and value of evidence,the system of proof and the standard of proof. Under these circumstances, the judiciary can hardly receive results of uniform implementation of the law, the right of people involved may be violated on several levels. Thus, the author plan to further analyze the specific issues existing in collection and examination of evidence in organized crime, and combine with international theory research, legislative experience and the current situation of domestic criminal justice, in order to guide the criminal justice as the starting point and destination point, systematic research the problems existing in evidence collection and review of organized crime, then construct and perfect evidence collection standard and review identified rules of organized crime, to guarantee the wheels of the investigation of organized crime go on, and to curb the further development of organized crime. Excepting the introduction, this article is divided into six chapters.The first chapter focuses on the harmfulness of the organized crimes,the collection and examination of evidence. Firstly,the article proves that the organized crimes disturb the order of social administration, break the market economic rules,harm social security and damage the state power in the base of some cases. Also,the article studies the development and trend of the organized crimes and the article suggests that we should hit back at the organized crimes.Secondly,the article concludes some characteristics of the evidence involved in the organized crimes in the base of 87 organized crime cases of one city in the west of China.These characteristics are oral,decentralized,variable and so on.At last,the article concludes the characteristics of oral evidence and material evidence in the organized crimes.The conclusion of this chapter is that the proof system in the organized crimes has double proof functions focusing on the oral evidence.The second chapter focuses on the collection of oral evidence in the organized crimes. By analyzing the 87 cases,the author concludes that the oral evidence has three features,which include the large quantity,the high scale and the large collection.Because of the importance of proof of the oral evidence,the investigators pay more attention on collecting oral evidence rather than the other evidence. However, it is difficult to collect the confession of the suspects, the testimony of the witnesses and the victims. So the author suggests some rules of collection and examination of evidence. The rule of corroborative confession with strict implementation, the loose opinion rule, the quasi-hearsay rule and the exclusionary rule of evidence in combination of compulsory and discretionary model shall be followed.The third chapter focuses on the in-depth study on collection and examination of material evidence,because of the concealment,anti-detection,large space-time cross and other reasons of the organized crime,which objectively leads to the serious natural or man-made loss of this kind of evidence.Therefore,compared to the oral evidence,this kind of evidence is less in quantity and the type is not complete,which shows the characteristic of unbalanced.Subjectively,the investigators are dependent on the oral evidence,and do not pay attention to the collection of material evidence,especially there are many illegal problems on collection procedure of evidence,which result in defects of evidence collection.According to different reasons for defects,the author creatively classifies evidence into unclear source of criminal evidence and nonstandard production of evidence.puts forward to adopt "exhaustive rules"collecting material evidence,conducts a comprehensive specification of the collection subject and procedure.,and takes correction measures of the defective evidence and takes all-round research on the correction object,correction method and correction standard according to different causes of problems. Meanwhile,we should improve the rules and mechanisms of collection,review and determination of material evidence. The fourth chapter researches the secret investigative measures of organized crimes and the evidence ability question of this kind of evidence.First of all,the article explores the forensics measures and types of taking secret investigative measures of organized crime in other countries of the world,which takes the legislative perspective.Secondly,the article classifies these secret measures,that summarized as internal investigative measures and external investigation measures.The internal investigation measures take concealed identity into the group of crime or positively contact with members of organized crimes,thus with a secret way to forensics and solidification of evidence,such as undercover investigation,temptation investigation and taking the secret power to obtain evidence.In addition to the external investigation,the article mainly focuses on the issues of technical control.Technical control measures are mainly used in the situation of the monitored person who is not informed,it would monitor the use of the computer network,communication tools,tracks and activities places,meanwhile,it would intercept or secretly photograph evidence.Finally,the article conducts a comprehensive analysis to the right reason of the secret investigation measures,the evidence ability and the protection of the right of cross examination of defense.Moreover,the article puts forward to constructive views of mechanism construction.The fifth chapter discusses the cognizance of the evidence of the organized crimes in detail. Firstly, the dissertation explores the unity between the standard of the "accurate and sufficient evidence" proof in criminal procedure law and the criterion of the evidence cognizance and makes a deep analysis on the sufficiency of evidence. Secondly, the dissertation makes a further study of the sufficiency of evidence cognizance on the fact of constitute elements of crime and measurement of penalty. Thirdly, the organized crime shall stand without reasonable doubt based on all evidence concerned. At last, dialectical proof rules, empirical rules and inference rules in the cognizance of the organized crimes based on its characteristic are proposed to resolve the cognizance of evidence in organized crimes effectively.The sixth chapter is mainly aimed at the problem of secret investigation and tainted witness in collecting and reviewing evidence of organized crime and proposes a mechanism of multi-dimensional construction. Firstly, to justify the measures taken in secret investigation, in which the deficiency of legality leads to the suspicion of the competency of the evidence collected, and to fix the lack of safeguard mechanism for secret force and the exclusionary rules for secretly obtained evidence, the scope of secret measures should be broadened to justify them, the transforming mechanism of evidence should be set up to protect the right of confrontation of defendant, the privilege against testifying should be granted to secret investigator to protect the mechanism of secret investigation, and the evidence obtained from illegal surveillance should be excluded. Secondly, the protection system of tainted witness shall be founded. As an highly effective way to gather evidences of organized crime, tainted witness is a powerful weapon to tear the notch of organized crime and an important channel to get concealment evidences. To strengthen its protective measures and improve the protective mechanism can effectively reduce the cost of investigation in organized crime; what’s more, it can improve judicial efficiency and fight against organized crime more thoroughly.The rule of the cognizance of organized crime is creatively built through the systematic study on the evidence collection of the organized crimes and the cognizance, as well as the rule in digging evidence and in secret investigation, which reverses the difficult situation of the organized crime investigation from micro level and control the expansion tendency of organized crime from macro level.Of course we should hit back at the organized crimes according to the law and contribute to the construction of rule of law in China.