A Theorial Study On Legality Of Secret Investigative

Although there is no specific definition for secret investigation in the Criminal Procedural Law of our country, it is an important measure to against some serious criminal offences in the investigation practices. Due to its characters of enforceability and offend human rights easily, there is an emergency to legalizing the secret investigation. There are two layers of meaning for "Legalization", one is the "legalization" as a principle, the other is the "legalization" as a status. There should be no exception in legalizing the secret investigation. The goal should be achieved by constructing the system according to the principle of law.The core problem in legalizing the secret investigation is the distribution of power and right, the need to guarantee the human rights constitutes the motivity of secret investigation. However, human rights is not a kind of belief in people's concept, and the Nature Human Rights theory cannot be an effective weapon to doubt the secret investigation. We need an universal and mature human rights theory—"Credit" Human rights--to regulate the secret investigation.The main purpose of legalizing secret investigation is to regulate the procedure, and we should spicify two concepts when doing this: First is the character of the limitation object, that is the executive authority; the other is the detailed object of regulation, that is the discretion of secret investigation. Therefore, the regulation of secret investigation is to regulate the free discretion within the procedure of secret investigation by legislative and judicial authority according to the law. As the procedure of secret investigation is a procedure motivated by power, the contents of secret investigation should be judged from the function of power, and analysis and choose the suitable regulation and legislation pattern accordingly. The judicature regulation of secret investigation is always achieved through judicature investigation. In the current legal system of our country, the people's prosecution services and the courts of people's republic of China has certain judicial authority, thus the judicial regulation of secret investigation could be implemented by these two organizations. In addition, due to the passivity characteristic of judicature, there should be one set of assorted system to regulate secret investigation effectively---that is the procedural defense, to vest the criminal suspects and defendants with the rights of procedure defense.As a democracy and legalization procedure, there should be some openness. The implementation of secret investigation is secret for both parties, however, as a legalization procedure, it should be with openness character. Of course, considering the utility of striking crime, the published objects and contents could present to be expansion along with the development of secret investigation procedure.