Construction Of The Criminal Search Procedure

Criminal search is an important Lawsuit behavior in the criminal procedure, which is also a detection method of finding the crime evidence, seizing criminal suspects. The long investigation proves that criminal search has an important effect in the crime control. Because it has a nature of mandatory punishment, when criminal search procedure starts, it inevitably impacts personal rights, property, housing, right of privacy and so on, which will be violated, if it is abused. In view of this fact, various countries attach great importance to criminal search procedure in the law of criminal procedure and make an important stipulation in its content, composing unique criminal search procedure. This articled analyzes the fundamental theory and procedure of criminal search, proposes some ideas of perfecting our criminal search procedure , trying to establish a system—the procedure constraints right, implements fully the value of the procedure and hopes to instruct the criminal legislates and judicial practice, which contains four chapters.The first chapter: the general theory, which mainly discusses the following four questions. The first is to introduce the basic connotation of criminal search: the concept,the concept's basic factor by each theory such as its main body, object, goal and so on;The second is to reveal its features, which is divided into seven parts; The third is to discuss the legal principle theory of its foundation, which involves the relationship of coordinating the state power and civil rights, in essence; The fourth is to research it as a whole, which contains three stages including the start-up, execution and the end stage and analyzes respectively its meaning: The start-up procedure is the logical starting point of the criminal search; the execution procedure violates the being searched most vulnerably in the course, which particularly needs the restriction of the procedure; the end stage is to make people'right to live become normal or realizes the search goal. Besides, I point out the problems should be paid attention to, which will provide the theoretical basis for analyzing the critical search procedure at home and abroad.The second chapter: the legislative provisions in the two legal systems. To begin with, because the two legal systems have different characteristics, a survey is made in the relevant provisions of important countries under the rule of law such as Britain, U.S., Germany, France and Japan; the next is to summarize the common provisions of the two legal systems in this procedure based on the analysis of specific institutions, mainly including setting conditions for the start-up procedure and establishing judicial-review mechanism with the card to examine; specifying the criminal search procedure, for instance ,confirming the search time, search numbers ,the searchers'legal obligations, present and witness institutions and so on; setting up the sanction mechanism and the relief mechanism of the illegal search to consummate the end procedure. The above content will provide the reference and the model for the construction and consummation of criminal search procedure in our country.The third chapter: its present situation .Based on the analysis of the two chapters above, according to the analysis and the induction of criminal search procedure's legislation and the judicial practice's present situation, many problems have been revealed in the criminal search procedure, such as the careless legislation, the lack of some important scheme; and what is worse is that the search decision-making power and the carrying-out power is combined, which leads to the lack of supervision and the non-feasibility of the sanction mechanism and the relief mechanism; the end reaction in the law enforcement is that the abusive of the search power will harm the innocent citizen's legitimate rights and interests.The fourth chapter: the reform of our country criminal search procedure. How to build the Chinese criminal search procedure is our current unvoiced problem. The article points out that on the one hand, the construction of criminal current search procedure is not only the lack of legislation, and what is more difficult to solve is the flaw of the institution; on the other hand, proceeding from the practical need, the search procedure's establishment is not only the need to control the crime and protect the human rights, but also the inevitable requirement of the procedure legalization.The article proposes the suggestion of the construction of the Chinese criminal search procedure; I hold that the following three aspects should consummate our country's criminal search procedure. First, the criminal search start-up procedure is strictly restricted ,making the reason for search definite; under the current judicial system, the supervising mechanism should be established to guarantee the card to search more standardized. Second, the executive procedure should be more specified the question which needs paying attention to and the execution is unable to legislate to exhaust. Therefore, this article mainly proposes the essential content to consummate the execution procedure: make the object, the scope specifically; limit search time, search numbers; definite the legal obligations of the searchers in the execution process. Third, criminal search end procedure should be improved. The sanction mechanism and the relief mechanism to resolve the illegal research should be established as soon as possible in our country, which be safeguarded both in the substantive law and the procedural law. Not only the illegal searcher who abuses the search power must be punished, but also the relief mechanism should be provided for the innocent citizen whose rights and interests suffer in the illegal search.