Temptation Investigation Under Views Of Criminal Control And Human Rights

In recent years, temptation investigation has been widely used in judicial practice and accepted by judicial authorities in our country. It also attracts wide attention for its legal blank and many obvious problems. On the one hand , temptation investigation is an extremely useful investigating method to control crimes in certain fields ;on the other hand , it causes much malpractice especially producing severe threat to human rights .Around the world, many countries including those well-developed ones often apply temptation investigation into criminal investigating activities. There is no sign of forbidding using it so far . Bases on full researches of theories and practices of temptation investigation all over the world, combining our national conditions ,the author advances a new theory -- Temptation investigation under views of criminal control and human rights—that is , instead of completely affirming or negating this kind of investigating method , limitedly admits it . To realize the aim of criminal proceedings, the author applies balance theory into solving the conflicts caused by temptation investigation. Meanwhile ,the author puts forward general rules (Consideration–to-Both-Side Rule ,Restrain-together Rule, Dynamic Equilibrium Rule) and specific rules(Due Procedure Rule, Statutory Rule ,Necessity Rule and Proper Rule).This paper proposes a preliminary construction on temptation investigation system, trys to limit it through procedural law and substantial law , and definitely restricts the applying main body ,range and objects of temptation investigation .The last straw that "forbidding tempting others into committing crimes" is used to distinguish legal temptation investigation from illegal temptation investigation .The type of inducing- criminal- intention temptation investigation is strictly prohibited ,but the type of offering-opportunities is endowed with legal status .During the process of inducing- criminal -intention temptation investigation, all evidences should be eliminated, and crimes caused by it should be sentenced as "not guilty". The seducer should bear the administrative responsibility. If grave consequences have been caused by the seducer's illegal intentions, he should bear the criminal responsibility of abusing the office or dereliction according to actual circumstance. During the process of offering-opportunities temptation investigation, verbal evidences gained through illegal way should be absolutely eliminated, but material evidences reserved. Crimes caused by offering-opportunities temptation investigation which include illegal factors should be penalized lightly during measurement of penalty. The seducer would bear corresponding criminal responsibilities according to the degree of his faults.