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Research On Rule Of Law In The Process Of Secret Investigation

Posted on:2012-01-22Degree:MasterType:Thesis
Country:ChinaCandidate:Y LinFull Text:PDF
GTID:2166330332997765Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The leading traditional mode of investigation is public, but it is unprecedentedly challenged, because the crime is more intellectual, organized and hidden day by day. Traditional detection methods are useless for the new type crime. In this context, in order to combat with the new types of crime, investigating authorities had to use the interception in the investigation. But in criminal procedure law of our country there is not an explicit stipulation and concrete operation sequence about the interception. So the interception is difficult to be used to combat new types of crime, and it may damage the rights of people because of the abuse. In order to prevent the rights of people from being damaged, we must put the interception into the law and under the control of the program of law.This paper is divided into five parts.Part One, summary of the interception. The interception is a criminal investigation which is used by criminal investigation authorities to collect facts and communication of the crime. It can be divided into three by communication methods. They are intercepting cable communication, intercepting wireless communication and intercepting oral conversation. They are secret, technology, mandatory and infringement.Part Two, value conflicts of the interception. The interception is a good method to combat crime. It can adapt to new trends in the development of crime, obtain evidence of a crime against torture, and reduce the investigation to decrease the cost effectiveness of criminal investigation. At the same time, the interception which is a hidden, initiative method can make fundamental rights of people threatened, damage the just image of investigating authorities, affect the judicial ethics, and threat the principles of fair trial.Part Three, the current situation of the interception in our country. Although there is no specific definition about the interception in the Criminal Procedural Law of our country, it is an important method to combat some serious criminal offences in the investigation practices. Because there is no specific definition about the interception, investigating authorities use the interception in secret state. The interception exists among internal regulations. The interception only exists in National security law of the People's Republic of China and People's police law of the People's Republic of China. There is no specific operational provision which legal case the interception can be used to. Prosecuting authorities do not have the rights to decide to intercept. There is no supervision mechanism which is effective. The materials which are gained from the interception are not counted as evidence in court. The people who are intercepted do not have the rights to protect themselves.Part Four, the legal control of the interception in our country. In this part, we will discuss the interception from two aspects about the necessities and possibilities. If we give the power to investigating authorities, they can use it to combat the crime. If we put the interception into law, we can protect civil rights from the power of country. It is very useful for the investigation procedure into the law. There are some possibilities for the interception in the law, for example, more and more people in our country have a good legal awareness, and investigating authorities give us a lot of experience from the interception.Part Five, the procedural construction of the interception in our country. There are three modes for putting the interception into the law. They are specifically legislation, comprehensive legislation and putting into the Criminal Procedural Law. But under the conditions of our country, the third mode is suitable to our country. The third mode is low cost. Its legislation cycle is short. This mode can make the legislation of the interception into criminal procedure law.Therefore, the regulation of the interception regulates the free discretion within the procedure of the interception by legislative and judicial authority according to the law. As the procedure of the interception is a procedure motivated by power, the contents of the interception should be judged from the function of power, analysis and we must choose the suitable regulation and legislation pattern. For the balance between protecting civil rights and combating the crime, we must establish a procedural method against the abuse of the interception.The abuses of the interception and missing procedures are twins. No control of the interception leads to the abuse of the interception. So in order to control the interception, we must establish a procedural method. From the procedural method, we can constraint the abuse of the interception. First, we must limit the object which may be intercepted. Which the interception is used to must be serious crime for example murder, terrorist crimes, gang crime and so on. Who the interception is used to must be suspect or defendant. Second, we must confirm the people who use the interception. In our country, except the police and state security organs the prosecution also should have the rights of the interception. Because the prosecution has the responsibilities to combat with corruption and bribery. Give the rights of the interception can make the prosecution stronger. It is very useful to combat with corruption and bribery. Third, the prosecution supervises the use of the interception. Because the prosecution has a status which is just and independent. The character can make the prosecution suitably. Fourth, we must give the people the rights which can be used to protect themselves, for example after the process of the interception, we must inform the people who has be intercepted.
Keywords/Search Tags:Secret Investigation, Interception, Value Conflicts, Necessity, Possibility, Construct
PDF Full Text Request
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