The Research On The Problems Of China's Criminal Search Rules

The criminal search is one of the important investigation measures for the criminal investigation unit to find out the suspect and collect the evidence of the crime. Because of its character of compulsory punishment, the criminal search is easily abused in the detection affairs. This would cause great damage to the proper rights of the guiltless citizens and break the citizens' reliance upon the nation's carrying out of law. Under some circumstances, illegal search would lead directly to the serious result that the evidence acquired in the search cannot be used as the evidence of judgment. As a result, this would make it not only unable to guarantee the proper rights of the suspect, but also make the guilty suspect out of law because of the application of the rule of evidence elimination. The abuse of search rights might infringe the fundamental rights of the citizens' property and privacy. For these reasons, the countries ruled by law have set up the strict rules on the criminal search, such as rules of the initiation, process of search and the legal consequence of the illegal criminal search. So, the criminal search systems with different characteristics have been created in the countries. The overlapping rules among the criminal search systems with different characteristics are concentrated on four aspects as following: the object and grounds to initiate the criminal search, the distribution of jurisdiction, the procedure rules and the illegal search and forbidden evidence.Although the Criminal procedure Law of China revised in 1996 has made greatprogress in protecting the rights of the defendant, the procedure of criminal * investigation, which always goes wrong, still hasn't changed a lot yet. What's more serious is that the criminal search rules in the Criminal Law of China haven't even changed a little. Looking through the criminal search rules of China, it can be found that the current system is too summary and lacking in some important criminal search rules. The most serious problem is the crime investigation unit plays the role of "player" as well as the role of "coach" in the "game" of the criminal search. In addition, the current system lacks the necessary restrictive rules for the activity of criminal search. Thus, it is inevitable that the criminal search will be abused and the rights of the citizens' be seriously injured. Therefore, it's an important problem on how to learn from the mature basic theory of criminal search in the countries ruled by law and how to combine with China's situation to perfect China's criminal search rules, to restrict the abuse of search power. And this becomes an important problem we must face when revising China's criminal search rules.The ways to revise China's criminal search rules are: firstly, to establish thejudicial inspection system and to practice judicial writ system to restrict the searchrights; secondly, to restrict the search rights by rigid laws; lastly, to establish rules of. illegal search and evidence-forbidden also called the Elimination Rule of IllegalProof by the coming law of Criminal Evidence.Under the current legal circumstance in China, six aspects must be amplified firstly. These six aspects are: establishing the judicial inspection system, practicing the judicial writ system in the common criminal search, the reasons and grounds for search, the contents must be stipulated in the search with certification, the kinds and circumstances when searching without a certification, the necessary restraints of the search procedure, the legal results of illegal search and judicatory relief.The thesis is divided into four chapters. The first chapter analyzed the basic principles of criminal search, including the concept, substance, character, significance, classification, reason, important document and the value tendency. In chapter two, by looking through the criminal search systems of America, Britain,France, Germany, Italy and Japan, the author summarized the overlapping rules among these six countries in the following aspects: the grounds to initiate the criminal search, the range of the object for the criminal search, the distribution of power, the procedure rules for criminal search, illegal search and evidence-forbidden. In chapter three, the author analyzed the shortcomings and main problems of China's criminal search system. In chapter four, the author explained the necessities of the revision of China's criminal search rules and suggested six aspects which must be amplified as the priorities to the current China's criminal search rules.