Discussion On Search Without Warranty

From the perspective of the rule of search without warranty in all of the world and Tai Wan region, when these countries and region make the search without warranty as the exception of judicial writ, also making the specific regulation of the types,the conditions of implementation,the executive program and the result of the illegal search about search without warranty. In other words, the search without warranty have already been an integrative system in those countries and Tai Wan region. This thesis is based on the search without warranty of the Anglo-Saxon system and Continental system , makes a through inquiry the search without warranty in the inland of country, points out the problems of search without warranty, analyzes the reasons of the problems, then puts forward the basic thinking and principles of the search without warranty that we should abide by, and proposes some suggestion to set up a scientific reasonable system of search without warranty.The content is composed of five parts:Firstly, it outlines the search without warranty and mainly elaborates its conception,types and basic nature, The conception of search without warranty is that the detective can decide to search the body,the article,and the residence without judicial writ in the specific situation of the law From the perspective of the rule of search without warranty in the world, the search without warranty can be divided into Attached Search,Consent Search and Emergent Search. As an act of meddling with citizens' basic rights, the search without warranty whose power origin is special, the power may be abused, and it can also protect the public safe.Secondly, the thesis analyzes the reasonable basis of the search without warranty, points out its jurisprudent base. The jurisprudent base of Attached Search is "limiting theory", then in order to ensure the arrest's effective moving, restrain the resistance of the person who is arrested and prevent him from running away and concealing proof. The jurisprudent base of Consent Search is "abandoning rights theory", then if the person agree to be searched, it means that the person abandons private rights protection. The jurisprudent base of Emergent Search is the needs to prosecute crime. Thirdly, it makes a very detailed comparative investigation into the search without warranty of the main law-developed countries in the world and Tai Wan region. And it introduces the theories about the search without warranty in England,America,France,German,Japan and Tai Wan , meanwhile, the author sums up the similarities and differences of search without warranty through comparison and analysis.Fourthly, this thesis analyzes the current system of search without warranty in our country. It points out the main problems of search without warranty in our country: the conditions that the search without warranty put into effect are very strict; the moving procedures are not stipulated by the legislation; the types of search without warranty are rather single; the important types of search without warranty are not stipulated; the ways to relieve the distress of the parties are lacking in search without warranty; and the supervision system on search without warranty is less. That is because the research of law theory is very feeble and the law concepts are lacking in criminal proceedings. But the most important reason lies in the notion of our tradition law culture.Fifthly, the thesis proposes some suggestions to perfect the system of search without warranty in our country. Firstly, the author points out the basic thinking that we should abide by when we perfect the search without warranty, we should perfect the search without warranty, under guide of modern legal concept, change law opinions of criminal proceeding, combine the condition of our country, draw lessons from other countries. Then, the author points out the basic principle we should abide by, they are the principle that the proceeding is provided by law, the proportion principle, the value that safe and free are very important. Last but not the least, the author points out the specific advices we should perfect the search without warranty, we should standardize the implementation condition of search without warranty scientifically, increase the types of search without warranty, stipulate the implementation proceedings of search without warranty clearly in law, enhance the relieved ways, and set up the supervisory system of search without warranty.