Comparative Studies Of Criminal Coercive Measures Between Korea And China

It is linked directly with the human being's civil liberties which is constitutional rights of citizens that the criminal coercive measures like a subpoena, a bail, a surveillance of residency, a detention, an arrest and etc. It is an important lawsuit activity through preconstruction of a trial, an investigation and a prosecution. We can regard the strictness of a detention and an arrest as a penal servitude being enforced after a final judgement in essence. Also, the forceful measures– for example, the inspection, the search, the confiscation and a wiretap - that is conducted during the investigation process attack the constitutional rights of citizens like rights of property, residence, communication. Moreover, this severity of invasion stacks up the compulsory actions restricting the freedom of human being. This thesis compares the compulsory measures of the investigationprocess on criminal action law in China and one in Korea. I describe the systems of China and the institution of Korea first, and develop the differences and something in common with using a way of comparing and analyzing the system.The first chapter explains that the notion of compulsory steps between two countries, the way the criminal procedure code law from those countries regulates the coercive steps, systems, sorts, the compulsory measures used internationally, due process principle which is a theory related to the coercive steps, the warrant principle, the proportion principle, the presumption of innocence principle etc. In the second chapter, I introduce a subpoena, a bail, residential surveillances, which is a mandatory measures as a non-detention of China. Moreover, I convey the meaning of an apprehension, a detention and arrest propriety judging, a bail, a subpoena similar with system in Korea. I account for compulsory procedures in Korea about the relief process like the arrest, detention and arrest propriety judging and the bail together, since a bail and residential surveillances in China play a role a process of restricted relief. However, there are more differences than something in common about system between two countries.The third chapter compares and analyzes the system between two countries after introducing of a detention and a arrest in China and giving a brief introduction of the detention and the arrest in Korea. The meaning and a role of the detention and arrest in criminal proceedings are quite similar but we also can see the differences in the part of the concrete legislation and the progress. In other words, there are plenty of differences in the conditions of the detention and arrest, whether to adopt of the draft notice principal and the period of detention.Subsequent to introducing the investigation, the search and the confiscation as a coercive measure to matters in China and Korea, I describe the differences about these in the fourth chapter. The criminal procedure code in China does not include the compulsory action of in rem in the categories of the compulsory action unlike litigation in Korea, so related regulations are dealt with the part of the investigation not compulsory action. The rules of condition, process and restriction are not strict comparing the compulsory actions.I mention a notion of the coercive measures to privacy in the fifth chapter. It is not a classification according to direct target of compulsory measurements but one kind of categorization disturbed by legal interests. It is usually used as a classification and privacy rights in present-day life is regarded as an important notion. I simply give an introduction about these things because we need to establish legal regulatory mechanism about various illegal means caused development of scientific technology. The sixth chapter pronounces problems and improvement opinions about current laws in China as a result of compulsory actions between two countries and comparing and analyzing the compulsion actions.That is to say, the related regulations are vulnerable relatively about coercive measures to privacy as restricting because the concept of enforcement action is limited to enforcement action by the personal. For strengthening these weak points, we order that making the categories of compulsory actions expand the coercive measures to privacy, ensuring smooth progress of criminal proceedings and guaranteeing human rights via neutral judge of judges by establishing the principle of the draft notice, guaranteeing the human rights ex post by improving remedies, preventing excessive redemption and establishing of legal stability by making the constraints clear and minimizing excessive long arrest and redemption period into a reasonable range by changing the paradigm in the investigation and with a scientific investigation.