On Tempting Detection

In china, the task of criminal detection is assumed by the detective departments of the public security organ and the national security organ, the detective departments for smugglers in customs, the security departments for the army, the detective departments in prisons and investigating and prosecuting apparatus (they are called by a joint name as detective departments in the later part of this paper). The work for detection is brought about new challenges due to the social vigilant situation and the fact that the criminal activities become more and more concealed, intellectualized, complex and organized. In order to beat criminal acts, tempting detection, as a special means of detection is being applied with restrictions in Chinese criminal lawsuits. At the same time, this special means of detection arouses extensive attention in the theoretical world and the world of actual judicial practice. Before the offering of a comprehensive definition for tempting detection, this paper introduces another concept, the entrapment, which is corresponding to tempting detection. The so-called tempting detections are aimed at those people, who have the intention of crimes or have criminal behaviors but are not tried. In order to gain evidence for the criminal lawsuits towards them, the national detective departments tempt them to commit crimes. When it works, those people will be immediately arrested and given criminal punishment. Tempting detection is a typical means of secret detection, because it is to tempt the privy to commit certain crime and take certain chance to arrest and charge him. While the so-called entrapment refers to the execution of some active actions from the detectives during the action of tempting detection which tempts the person, who has no intention to commit crimes, to commit crimes. From the above definitions of the two, we can see that tempting detection is a legal means of detection, while entrapment is treated as illegal means of detection. The way of detection and the aims of the two are the same. And they all apply secret means to gain evidence to fulfill the aim of disclosing crime. But the two assume different legal results. That is to say, the two differ in that the former is a legal means of detection and the latter is an illegal means of detection. And it is possible for the former to change into the latter at any time. Once the activities of tempting detectives surpass legal restrictions, or passive activities become active activities, so as to tempt person, who has no intention of committing crimes, to commit crime, then tempting detection becomes entrapment and legal actions become illegal actions. By surveying the story of human history, the application of tempting detection is of long standing. In China, there were "spies"specializing in secret detection since Qin and Han dynasties, which are among the early period of the establishment of feudalism. This tradition is passed on from generation to generation. In the west, there were people with similar duties from feudal period, but the definitive presentation of tempting detection as a means of detection was started from the reign of the French king, Louisâ…©â…£. Later western countries carry it forward. FBI is a detective organization, which extensively applies tempting detection, to prevent from spies and destructive actions. The names for tempting detection vary, but the means is similar. From this point of view, we can see the necessity for the establishment of this system. At the same time, tempting detection sometimes may result in an innocent's commitment of crimes, so a restrictive system--the system of entrapment should be established. Theories about tempting detection get fully development in America and Japan. And "legal principles of traps"are formed. At first, whether the tempted has the intention of committing crimes before being tempted is the criterion for the differentiation of entrapment. This is also called the "subjective view". Later this criterion is changed into the contemplation onthe actions of the policemen. This is the so-called "objective view". There is no victims in tempting detection, for this reason, we should confirm the legality and necessity of it. We should pay a close attention to its harmfulness to the society as well, when it develops into entrapment. Therefore, the differentiation of tempting detection and entrapment should be made from more aspects: from whether the object of tempting detection has a definite suspect and ample suspectable reasons; from the objective part of the tempted, that is the tempted in tempting detection should has obvious intention of committing crimes; and from whether the detective's strength of actions or the degree of temptation surpasses reasonable limitations. We should apply the criterion of relative "toleration". That means all actions that accord with the stipulations in laws can be deduced to be legal. Tempting detection has an irreplaceable function in disclosing crimes and fighting with criminal activities, and the legality of is should be made. From the analysis of the history, the controllability for the situation of criminal activities and the moderation principles of tempting detection, we can see the reasonability of tempting detection. But entrapment violates the citizen's right of self-discipline, which allows no interference from public authority. And it breaks the base line for beating crimes and is suspectable of trapping people into crimes. Therefore, the development of tempting detection into entrapment testifies its deviation from the value of justice of modern lawsuit (including detecting activities). It is harmful to the moral responsibilities of detecting organs and the authority of national organs, thus it possesses irrationality. Therefore the system of tempting detection and entrapment should be established to ensure that there are laws to go by. Combining with our country's actual situation, it is necessary to establish the system of tempting detection. It is in accordance with the requirement for the protection of the citizen's basic rights; with the requirement for the protection of personal rights through the restriction of public rights; with the requirement for the principle of equal rights in the faceof laws; with the requirement for the principles of the adaptation among crime, punishment and penalty; and it is also beneficial to the accurate verdict. But during the process of employing the means of tempting detection, the applicable scope, the applicable object, the way of behavior and the procedural restrictions should be stipulated and constrained, so as to avoid the development of tempting detection into entrapment, and to pursue the balance point between the two. Therefore the system of tempting detection should be co-established with the system of entrapment. And when the procedures do not conform to legal stipulations, factors influential to the measurement of penalty of the entity should be taken into consideration, and the defence for impeccability and misdemeanor should be made permissive for the litigant in the cases, which is investigated and solved by means of tempting detection...