On Perfecting The Legislation For The Criminal Seizure In China

Investigation, as a kind of state power, must have certain compulsory measures, and whether to limit a suspect's personal freedom, or to collect and preserve the evidence, it is inevitable to adopt compulsory methods. During the process of executing the investigatory power, there are two different requirements of interests: one is to effectively investigate in order to maintain social safety; the other one is to safeguard the freedom and rights of a suspect and other relative persons. The more requirements the investigatory behaviors needs to ensure its effects, the more possible it is to impinge on a relative person's basic rights of living field. Therefore, it is obligatory to seek a proper balance between the necessity of investigation and the requirement of safeguarding human rights. At present, there are relatively few legislative limitations on the criminal seizure as a compulsory measure in the stage of investigating criminal procedure in China, and in practice there are numerous issues, such as the abuse of the investigatory power, the deficiency in relieving means of the party who is injured by the supervisory behaviors, and so on. This thesis, on the basis of an in-depth discussion about these issues, proposes relevant methods and thoughts of improving and perfecting the legislation on the criminal seizure in China, and further discusses the concept and construction of the criminal investigation system and even the whole criminal procedure system in China.This thesis is divided into three parts.The thesis begins with an introduction. It points out that in China the present criminal seizure in the stage of investigating criminal procedure has many issues in practice, some of which are incurred because the investigatory organs and investigatory personnel abuse the right of seizure due to various subject and objective reasons, expand the scope of seizure, arbitrarily seize property, do not strictly execute the procedures of seizure and violate the regulations of seizure, and what is more important is that some are incurred because of imperfect, unreasonable and unscientific regulations of criminal seizure in present Chinese laws. This thesis tries to begin with a discussion of these issues, refer to the legislation in other countries and the theories of experts and scholars, and combine the author's practical experience gained by working in a public security organ in recent years, so as to find out issues and analyze their reasons, and further propose the methods and thoughts of improving and perfecting the criminal seizure in China.The first part of this thesis involves the definition and the legitimacy of the criminal seizure. Chinese criminal seizure in the criminal procedure law is stipulated as the seizure of material evidence and documentary evidence, and it is an investigatory behavior of legally seizing articles and documents discovered during an inquest or search that may be used to prove a criminal suspect's guilt or innocence. The investigatory organs can determine whether to seize evidence or not on their own. The definition the criminal seizure itself regulated by the criminal procedure law in other countries is similar to that in China, but they usually regulate the criminal seizure as a kind of compulsory investigatory behavior, require that it should be executed after the judge judicially examines it, approves it, issues the writ. By comparing the legislation in China and other countries, this thesis deems that, since the criminal seizure in China has already infringed citizens'constitutional rights, it should be included in the system of compulsory measures in the criminal procedure law, in order to limit it more strictly by legislation, impose more restrictions on it in practice, and thus prevent the abuse of the investigatory power. Meanwhile, the thesis points out that the criminal seizure possesses legitimacy, because it is the requirement of investigating crime, punishing crime, and hence protecting social interests and the rights of the majority of people, and is the result after the state trades off the interests of investigation and the interests of protecting a relative person's basic rights. However, the application of the criminal seizure must strictly observe the regulations, prevent the infringements to citizens'basic rights, minimize the infringements when they are inevitable, and allow the relative person who is injured by such compulsory measures as the criminal seizure to appeal for judicial relief.The second part of this thesis is about the legal regulations of the criminal seizure in China and its deficiencies. At the beginning, this part introduces the present legal regulations of the criminal seizure in China, points out that the issues in the present criminal seizure in China mainly includes: firstly, the scope of seizure is too general and lacks regulations of limitation. It involves the deficiency in the limitation of seizing the property related to the vital national and social interests, and the limitation of seizing mails (e-mails) and telegrams. Secondly, there are only a few of types of the criminal seizure. Only the seizure of the articles and documents as the criminal evidence is regulated, so the scope of the seized articles naturally decreases. Thirdly, the regulations of seizing and pursuing certain articles are not definite. Fourthly, the investigatory organs can determine whether to seize evidence or not on their own, i.e. the lack of supervision. Fifthly, the procedures of the criminal seizure are not specific. Sixthly, the keeping and disposal of the seized articles and documents can easily arouse controversy. Seventhly, there are no definite regulations of the objections to the measures of the criminal seizure. Eighthly, the criminal seizure lacks the relief after the event.The third part of this thesis concerns the conception of perfecting the legislation on the criminal seizure in China. Firstly, the regulations of the inadaptability of legislation on the criminal seizure in China should be amended. This includes the amendment to the scope of the criminal seizure. This thesis deems that presently at least the seizure of some articles and documents representative of special interests should be limited, in order to persevere the national and social public interests, protect citizens'rights of the person, property right, the privacy and freedom of correspondence and other constitutional rights from being infringed; the regulations of seizing and pursuing the property that are properly acquired should be amended, it should be regulated that the illicit money and articles that are properly acquired not be seized and pursued, but meanwhile, exceptional principles should be applied to some special illicit articles ; the application of being transferred together with the case and returned in time should be amended. This thesis deems that it is obligatory to insist on the principle of being"transferred together with the case", regard the in-time returning as an exception, and strictly regulate the conditions of application. The situations when the transfer is unsuitable should be strictly required according to the procedures, in order to ensure the functions of the seized articles as evidence, and these situations can only be regarded as the special manners of being transferred together with the case. Meanwhile, it is suggested that in order to prevent the seized articles from being arbitrarily detained, transferring the seized property together with the case and returning them in time should be involved in the system of judicial review before the examination. Secondly, the gap of the legislation on the criminal seizure in China should be filled in. This includes adding the regulations of the seizures aiming at preserving and preventing, increasing the regulations of sealing and unsealing the seized articles, strengthening the regulations of protecting a suspect's right of appealing, suggesting to establish the judicial review system of the procedures before the examination in the criminal procedure in China. This thesis deems that it is obligatory to adopt the internationally accepted method of conducting judicial review by judges, the judicial tribunal can be established in courts, and preliminary judges are responsible for judicial review. The judicial tribunal and the criminal division should be separated, in order to avoid a justice's substantial review of the case, and prevent the first impressions'dominant effect. The thesis further propose three conceptions, including implementing the system of judicial writ, establishing strict regulations of excluding illegal evidence, and clarifying the possibility of appealing against the investigatory behaviors.