On The Construction Of Investigation System In China

Inductive investigation is a special investigation method widely recognized in legislation and employed in judicial practice in both common law and civil law countries, and it has played an important role surpassing ordinary methods in crime investigation against drug, smuggling and counterfeiting currency crimes. However, due to this method's involvement with many legal problems, for many scholars and legal professionals, its legality has been a controversial issue. And in China, although inductive investigation has not been recognized in legislation, in practice it has been applied in not few cases to meet the need for punishing special types of crimes and maintaining social stability. It has brought up questions in legal theory and caused complications in practice, which demands answers from legislators and scholars. It is necessary to recognize the legality of inductive investigation in a limited scope and apply legal regulation to it in order to follow judicial rules as well as the trend of our time, solve the innate problems in inductive investigation and meet the needs for punishing special types of crimes and maintaining social stability. In this paper, the author employs methods such as comparative analysis and empirical study, starts with illustrating the concept of inductive g investigation,then compares the concept with related confusing concepts of other secret investigation methods such as undercover investigation, entrapment by police, special situation investigation and framing and abetting investigation. The method can be divided into two main types according to whether the entrapped has subjective crime intention or not before being entrapped. The first is crime intention inducing type and the second is opportunity providing type.Then this paper studies the two theories of the criterion of the legality of inductive investigation, namely, subjective standard theory and objective standard theory. This paper proposes that in court hearing for counterplea from the entrapped based on the reason of investigation entrapment, we should first judge according to the criterion whether the inductive investigation has the effect of causing crime intention or not,then take into consideration the factor whether the entrapped has crime intention before being entrapped. As a extremely covet investigation measure, inductive investigation of criminal intention inducing type is a incriminating act against the spirit of judicial fairness and modern law,which can easily cause damage to the basic rights of citizens in practice and should be firmly discarded. Inductive investigation of opportunity providing type has its legality based on the rules of law, meeting the need for social security as well as the demand of investigation efficiency and legal interest equity, and should be affirmed. Through analyzing current legislation and existing problems in China, this paper proposes that inductive investigation system of Chinese characteristics should be based upon Chinese social conditions and the demands from legal practice, at the same time borrowing experience from foreign legislation. The rules in applying inductive investigation should be firmly established, such as the rule of necessity, the rule of reasonable doubt, the rule of appropriateness, the rule of judicial review and the rule of accountability. The subject of inductive investigation should be limited into two kinds:the investigators with investigation powers and others under the instruction of the investigators. The types of cases on which inductive investigation can be applied should be limited into consisting only crimes of a highly secret nature such as crimes against national security, drug crimes and counterfeiting currency crimes, crimes committed by criminal organizations, crimes which occur at a relatively regular time and place, crimes of a covet nature committed by officials. Judicial review for inductive investigation should be conducted according to the characteristics of judicial system in China and the rule of procurator review should be emphasized; distinction should be made between different types of inductive investigation such as inductive investigation against special targets and inductive investigation against non-special targets, inductive investigation against ordinary crimes and inductive investigation against office crimes, and different procedures should be applied accordingly. For illegal inductive investigation, distinction should be made between the two types of inductive investigation, namely, crime intention inducing type and opportunity providing type and different punishing measures should be applied according to litigation processes. From the perspective of substantive law, this paper proposes ideas on the regulation of the responsibility of entrapper according to circumstances.