On The Principle Of Proportionality In Investigation

The principle of proportionality is an important principle in public law.Its basic meaning is that the goal of the state organ's conduct should be coordinated with the protection of the rights and interests of the relative person.If the means to achieve the goal may harm the rights and interests of the relative person,the harm to the criminal suspect should be minimized as far as possible on the premise of achieving the goal.The principle of proportionality usually includes three sub-principles: the principle of appropriateness,the principle of necessity and the principle of narrow proportionality.The principle of appropriateness requires that the acts carried out by state organs should be conducive to the realization of their objectives;the principle of necessity requires that state organs should choose the least means of infringing upon citizens' rights among the same effective means;and the principle of narrow proportionality requires that the intensity of the restrictive means adopted by state organs should not exceed the purpose they want to achieve.It can be seen that the basic purpose of the principle of proportionality is to limit public power in order to prevent its excessive violation of civil rights.In criminal procedure,all kinds of evidentiary acts,coercive measures and the use of force are easy to infringe upon the rights and interests of citizens.Constraining these acts with the principle of proportionality can make the investigation legislation more reasonable and make the investigation law enforcement more in line with the basic spirit of the law.It can be seen that the systematic study of the principle of investigation proportionality is of great significance to the legislation and practice of investigation.In addition to the introduction and conclusion,this thesis consists of five chapters.The first chapter focuses on the basic theory of the principle of investigation proportionality.The principle of proportionality sprouts in the concept of justice.After the arguments of the ancient Greek sages,the proportional thought gradually played a role in various fields.The principle of proportionality started with the theory of power limitation,established in the police law,and rose to the constitutional level through the “Pharmacy Case”.Then,the application of the proportionality principle extends to multiple areas,including the investigation process.Although scholars argue about the expansion,but the power-related characteristics of investigation determine that the principle of proportionality is necessary to regulate investigative behavior.Generally speaking,the principle of proportionality of investigation in continental law countries is mostly stipulated in statute law;although there is no principle of proportionality in Anglo-American law countries,these countries have the principle of "rationality",which is very similar to the principle of proportionality;the principle of proportionality is stipulated in constitution and criminal procedure law in countries with mixed litigation mode;and the principle of proportionality is also stipulated in Taiwan region of our country;Numerous international human rights laws prescribe the principle of proportionality explicitly or implicitly.In the investigation law of the Qing Dynasty,there were proportionate contents.During the period of the New Democratic Revolution,laws and regulations in the base areas also had similar provisions of the principle of proportionality.Since the founding of New China,more and more laws concerning the principle of proportionality of investigation have been enacted since the enactment of the Criminal Procedure Law.The Criminal Procedure Law revised in2012 has the most specific and detailed provisions on the principle of investigation proportionality.Amendments to the law in 2018 also increased the design of the principle of investigation proportionality.The direct purpose of the investigation is to collect evidence,find out the case and catch the suspect;the basic purpose is to ensure the smooth progress of the criminal procedure;the special purpose is to prevent crime.Accordingly,the principle of appropriateness of investigation refers to that the establishment and design of investigation behavior should be conducive to the realization of investigation purpose;the principle of necessity of investigation behavior refers to that we should choose less aggressive investigation behavior to implement after setting up different intensity investigation behavior;and the principle of proportionality of investigation behavior refers to that the establishment of investigation behavior should be related to the severity of crime and criminal suspects.Personal danger matches.The principle of proportionality plays a guiding role in legislation and law enforcement.The second chapter focuses on the scope and procedure of application of the principle of investigation proportionality.The precondition for the implementation of the principle of proportionality is the systematic programming.The application time of the principle of proportionality should be extended to the preliminary investigation stage before filing a case,and its normative object includes all investigation actions and measures,namely,personalcoercive measures and investigation and evidence-gathering acts.Moreover,although the use of force in investigative law enforcement is not an investigative act,its implementation is an important guarantee for the purpose of investigative work,so it should also be regulated by the principle of proportionality.The scope of protection of the principle of proportionality in investigative work is the basic rights stipulated by all constitutions,including personal rights and property rights.In order to achieve the above protection objectives,the principle of proportionality should be clearly stipulated in criminal procedure legislation and used as a tool for normative design;the investigative organs should strictly implement the principle of proportionality in internal procedures;the procuratorate should strengthen supervision over violations of the principle of proportionality in law enforcement,and give full play to the role of judicial organs.At the same time,we should also strengthen the right of defense,open investigation,procedural sanctions and state compensation to provide complementary relief to the counterpart's claims.The third chapter focuses on the principle of proportionality of investigation and evidence-gathering.Through interviews,surveys and data analysis,it can be seen that there are many inconsistencies in the practice of investigation and evidence collection.In this regard,we should make clear the purpose of investigating and only when there is evidence possibility and reasonable basis can we start investigating;after classifying the strength of investigating,we should try our best to choose less aggressive behavior;when collecting evidence,we should use investigating behavior matching the harmfulness of criminal behavior and the danger of criminal suspects.In the routine investigation and evidence collection,the time of interrogation should be strictly limited to meet the requirements of the principle of necessity.The purpose of body sampling should be clarified,the behavior of body sampling should be typed,and the damage should be minimized.The crime and danger of the person being sampled and the means of sampling should be evaluated to avoid excessive sampling.For the search behavior,the emergency search system should be set up under the condition that the search purpose is clear;the use of compulsory means of search should be strictly restricted;the general search behavior should be applied only when there are reasonable grounds,and the scope of emergency should be strictly confirmed when the undocumented search is initiated.For acts of seizure,seizure and freezing,we should make them conform to the principle ofproportionality by defining their purposes,applicable objects,limiting the applicable period and limiting the conditions of use.In special investigation and evidence-gathering,we should clarify the purpose of technical investigation measures;advance their application time and refine their application procedures to meet the requirements of the principle of appropriateness;take technical investigation measures as the principle of last resort,hierarchize these measures and limit their application time to meet the requirements of the principle of necessity;and design technical investigation measures to meet the requirements of the principle of necessity.In order to meet the requirements of the principle of proportionality,the hazardous and dangerous conditions should be applied.For temptation investigation,we should clarify the purpose of temptation investigation;establish a perfect case secrecy system to avoid witnesses refusing to provide testimony;we should take temptation investigation as a last resort,try to choose the behavior with less degree of temptation procedure,and set time limit;we should set a bottom line for temptation investigation and apply appropriate temptation investigation measures according to the harmfulness and danger of crime.The fourth chapter focuses on the principle of proportionality of coercive measures.Through interviews,surveys and data analysis,we can see that there are many aspects of the compulsory measures in practice that do not conform to the principle of proportionality.The causes of this problem are not only insufficient subjective understanding,but also lack of legal norms,as well as deficiencies in programming and supporting systems.The overall requirement of the principle of proportionality of coercive measures should be to clarify the purpose of coercive measures,improve the application procedure of coercive measures,design different coercive measures with different strength,clarify the standard of degree of infringement,and clarify the applicable objects and conditions of different coercive measures so as to make the coercive measures meet the requirements of the principle of proportionality.For the realization of the principle of proportion of custodial coercive measures,the premise of realizing the principle of proportion of detention should return the purpose of detention.After that,we should set up undocumented detention,shorten the time of detention,and adjust the applicable objects of undocumented detention and arrest.For the realization of the principle of detention proportion,we should make clear the duration of detention,strictly stop the extension of the duration of detention,regulate the compromise of the judge on theduration of detention,and strictly grasp the applicable penalty conditions and dangerous conditions of detention.In order to realize the principle of proportionality of non-custodial coercive measures,we should clarify the purpose of bail pending trial and adopt various ways to avoid the escape of criminal suspects.The types of bail awaiting trial should be increased and the burden should be reduced as far as possible.Excessive margin collection and arbitrary confiscation should be avoided.Moreover,we should expand the application of bail pending trial in order to reduce the detention rate.The purpose of residential surveillance measures should be clarified so as to avoid them becoming "custodial" acts.We should reform the way of executing surveillance residence and make use of advanced technology.The provisions on the commutation of sentences should be reformed.The fifth chapter focuses on the principle of proportionality in the use of force in investigation.Through interviews,surveys and data analysis,we can see that the use of investigative law enforcement force does not conform to the principle of proportionality.We should build up the awareness of legitimacy of force,improve the legislation on the use of force,clarify the nature of the use of force,strengthen professional training on the use of force,and improve the openness of the use of force.The principle of "minimum use of force" should also be established.On the premise of classifying force into different levels,the less harmful means of force should be used as far as possible.Emergency conditions for the use of force,personal danger conditions and conditions for suspected crimes should be established.Shooting is the highest level of use of force.Shooting warning shots should be used with caution.The shooting procedure should be specifically designed to avoid abuse or uselessness.We should adopt the criteria of "post-event standard" as the main criterion and "pre-event standard" as the supplementary criterion.When shooting,we should try our best to avoid hitting the fatal parts of the human body.Shooting should be matched with the degree of personal danger of the criminal suspect.Preventing the escape of the criminal suspect should not be the only reason for shooting.It should be required that the rights and interests protected by shooting should be greater than the damage caused by shooting.