The Study On Basic Issues Of Temptation Investigation

With the development of society, the increasing complexity of criminal cases is a reality that can not be ignored. Various new types of crime, such as drug trafficking, bribery, counterfeiting currency and organizing prostitution, cyber crime, etc., because of their high level in secrecy, organization and the anti-detection means which is the great challenge to the tradition, all kinds of special investigative methods came into being. Temptation investigation is proved to be such one of the effective measures for cracking the tough cases. In China, the temptation investigation has been widely used in the investigating, however, because of the lack of clear legal regulation, its legitimacy has been continuously disputed. Therefore, China is imperative to establish a legal system to regulate the temptation investigation, making the temptation investigation which is the dangerous special method into the orbit of rule of law. This paper summarizes the definition, characteristics, classification of the temptation investigation, analyses the rationality and unlawful of the two temptation investigations from a legal perspective, and brings forward the assume on constructing the legal system of temptation investigation in China by drawing on the legislation experience of countries all over the world. The paper is divided into four parts.The first part is the summarization of the temptation investigation. Temptation investigation is a special investigating method, which refers to the investigating organs, or employed by the state prosecution staff on the needs of specific criminal investigation, providing an opportunity or conditions to the investigating objects to lure their criminal acts in order to obtain the evidence of a crime. There are three characteristics: randomicity, inductivity and initiative, classified the temptation investigation, and with the comparing to trapping, cleared that the temptation investigation is a special investigating means. According to whether the objects of temptation investigation is clear, temptation investigation is classified temptation investigation to existent objects and temptation investigation to potential objects. According to whether the tempt has criminal incline, it is classified encouragement investigation and entrapment investigation. Because we do not have the legislative regulation and interrelated judicial interpretations about the temptation investigation, therefore, in practice, the use of the temptation investigation is basically in a state of uncontrolled chaos, the resulting problems: First, the scope on the cases of the temptation investigation is confused. Second, the objects of the temptation investigation is random. Third, the monitoring mechanism to the temptation investigation is lack of.The second part is the analysis of the temptation investigation. First, analyses the rationality of the encouragement investigation: first, the substantive law to bear in line with the principle of guilt. The second is to follow the provisions of the Criminal Procedure Law. The third is the need for special cases detected. The fourth is the feasibility of practical use. Second, analyses the illegality of the entrapment investigation: first, violation of the citizen's right to self-personality from the public authority to intervene. Second, it weakens the state judicial ethics. Third, it could make the person who does not have the criminal incline committing a crime.The third part is the study of the temptation investigation. First is the introduction of the new development of the legal in the temptation investigation of the United States in legitimacy standards, protection of the rights of the accused, before the temptation to raise reasonable suspicion and the improvement on responsibility to prove. Second is the regulation of Japan, Germany, France and other countries.The fourth part is the legal construction of the temptation investigation in China. First, establish the applicable principles to the temptation investigation, including reasonable suspicion, the principle of examination and supervision, and the principle of integrative examination. The principle of reasonable suspicion is there must be reasonable suspicion before the temptation investigation. It shows that the targets is doing or will do some serious crime. However, at this stage the evidence should not make excessive demands, only to a certain extent the evidence is more credible information, may show a certain crimes are taking place or will take place, after a rigorous examining and approving procedures, the temptation investigation will start. The principles of examination and supervision is that in order to prevent police abusing rights, we should use the opportunity to revise the "Criminal Procedure Law", bringing the temptation investigation into the areas of the law and regulating its conditions and procedures definitely in order to truly reflect the statutory procedures for the modern principles of the rule of law. On the construction of the system, it can be adopted from the practice of the United States. The administrative examination will be combined with legality examination during the trial to the conduct of investigations together, establish a set of proven framework, and exclude the evidence obtaining from the constituting a "decoy" the temptation investigation. The principle of the integrative examination, is that based on the analysis about objective and subjective factors, to clarify the causal relationship between crime. Second, establish conditions for the application of the temptation investigation. The subjects will only be the investigators of the investigating organs or investigators employed by the state prosecution agencies. Considerable scope should be the prosecution's case which is concealed, harmful and only against a "no victim". The objects must have a reasonable basis of crime or serious crime tendencies. It isn't the way to make important the investigating personnel, and take excessive behavior. It is not only judging the investigating objects being the true criminals by the positive and enthusiastic showing when they face to the temptation, but also can not consider legality all and singular because of the temptation strength of the investigator being weaken. Third, establish the evidence regulation of the temptation investigation, including the addition of character evidence and the establishment of illegal evidence exclusionary rule. Fourth, establish the criminal responsibility of both temptation investigation, including criminal responsibility of the tempted and the tempting in the encouragement investigation. Fifth, establish the system of police to testify in court. Firstly, whether the temptation extent overruns the necessary require police to testify in court. Secondly, the tempting investigator in the course of the investigation whether is to "provide opportunities"or "induced offend" need the police to appear in court testify.