On Legal Construction Of Encouragement

Encouragement, as a secret means of investigation, is commonly applied in China's judicial practice actually, yet its clear and definite stipulation in China's legislation is not found and unified understanding of it have not been formed in theoretical circles, it still remains a controversial issue. On one hand, such condition often makes organs of investigation and investigators feel confused and even in an embarrassed situation after solving cases when using this means; on the other hand, the fundamental human rights of individuals such as the stability of private life and personality self-discipline under the state of ruling of law are threatened with the improper use and even abuse with ill will of encouragement. Take a superficial view of the academic controversy on encouragement; it just concerned ordinary theories of criminal procedure law including properness and legitimacy of using encouragement and its relevant issues of legislation techniques; but after making a thorough analysis, some in-depth issues such as whether making our choice on some values of criminal procedure law or studies and evaluating of the quality of legislation techniques underlie these debates. In order to further clarify the relevant issues involved in the debates, starting from the definition of the concept of encouragement, this dissertation makes an attempt to construct the encouragement system with the study of properness and legitimacy of encouragement as its core according to ruling of law after drawing lessons from the experiences of legislation and judicial practice in western countries.