China's Criminal Proceeding To Protect Privacy

Last century's several worldwide scale significant destruction, while gives the environment and the crowd brings disasters, also causes the modern human rights idea to awaken quietly and the vigorous development. World many countries have been clear in the legislation to the freedom, the democracy, the human rights and the government by law confidence and the determination. Following this strong trend of development, the 21st century will be one further strengthens human rights, democracy, the government by law century, the law will further be coordinated the society contradictory and various aspects benefit, obtains the establishment perfect modern judicature system. The right of privacy is an independent concrete personality power, its primary intention lies in protects natural person's life freedom and the spirit is peaceful. Individual right of privacy legal protection, this is civilized society's request. The right of privacy legal protection's degree is one of social civilization progress degree symbols. Strengthens the right of privacy the legislation and the judicial protection, has become the majority civilized states the mutual recognitions. Our country's criminal prosecution judicature has been in carries on the reform and in unceasingly the attempt process, seeks during the safeguard maintenance public peace and order basic function can display, strengthens to the human rights and so on safeguard.This article obtained from the privacy theory, to discuss the right of privacy in criminal prosecution's existence - - constitution right of privacy basic connotation and the legal science theory, has analyzed the relational present situation which between the criminal prosecution and the right of privacy protection existed, simultaneously has forecast the legislative development which the future will possibly produce. In studied in the criminal prosecution procedure after to involving individual right of privacy protection the content and the criminal jurisdiction relations, the criminal prosecution participates in state power which and rights of citizens contents and so on conflict question person's right of privacy protection, the specific lawsuit activity's right infringement reality and produced inevitably, still had the insufficiency related legislation to our country to put forward some proposals.The first part is carries on the summary to the privacy and the right of privacy fundamental research, and will be related the content contrastive analysis. The privacy is the right of privacy central content; it is a tendency, the development concept. Any definition which does to the privacy is in a time viewpoint, along with the social politics, the economical development, will involve the citizen privacy the scope even more to be broad, but will become citizen's lawful right regarding the privacy, will receive the protection, the majority scholars and the country will hold the approval opinion. Although various countries' scholar made from the different angle many have been different to the right of privacy the understanding and the definition, but in each kind of research idea, some point was everybody acknowledged generally, namely the right of privacy should be an item has the independent legal status citizen's basic right, the information which the natural person enjoyed is not pried with public, individual life is not invaded, individual thing not to be blocked the independent decision-making power actually the power and the benefit. Person has the concealment to own privacy fact, to use, the control and the maintenance right, but other people undertake do not pry, do not publicize, do not publish, comment other people privacy the duty. The Human rights organization and various countries the right of privacy the value reflection in the legislative domain, are in the world the majority of countries to the right of privacy acknowledgment and the protection, to different guard mode enumeration after analysis, our country criminal prosecution and the international judicial criterion will compare, the perfect disparity and the oversight, for with the international judicial criterion trail connection, consummated our country domestic legal regime and the judicial environment put forward the supplements proposal.The second part through enumerates our country right of privacy protection the legislative situation, analyzes our country right of privacy protection the insufficiency. Our country right of privacy's legislation does not have the full traditional foundation, does not have individual right urgent need which capitalist society country such individual idea's several hundred years accumulate gradually produce, in addition receives long-term take the country as the family thought influence, the national the understanding and takes the degree the right of privacy to be very insufficient, causes our country's right of privacy to legislate to be beset with difficulties. Close and easiest to have infringement civil rights discipline domain as and the rights of citizens relations, in the Law of Criminal Procedure significance right of privacy manifests in the legislative gaps and omissions and in the judicial practice is the criminal jurisdiction with in individual right of privacy between conflict, to punish the crime, restores the social justice, the Judicial organ enjoys the widespread gain evidence right and the method, like search power, inspection power and so on. In order to achieve the criminal prosecution goal to collect and the case related evidence, often will produce in the process to the citizen right of privacy serious infringement, like the monitor, will steal records and so on. Some situation collection's evidence is in itself to the litigant right of privacy infringement, like diary, medical record and so on. But these behavior's making while has satisfied criminal jurisdiction punishment crime function, will create inevitably to the criminal prosecution participates in person's personal dignity (or will say right of privacy) infringement. This cannot achieve another function assurance of human rights concrete manifestation. Law of Criminal Procedure takes the application constitution, not only undertakes is punishing the crime the function, but should even more manifest the human rights safeguard the function. Should first integrate the privacy and the right of privacy connotation, the scope, the main body in the legislation, is suitable concrete condition contents and so on general explanation, is clear about the right of privacy the independent right status; Next through to encroaches upon the stipulation which the right of privacy the responsibility constitutes and undertakes, enhances the right of privacy protection in the judicial practice feasibility; Finally, must in include the constitution, the civil law, the procedural law, the administrative law and so on many provisions of law to stipulate explicitly the right of privacy related content, forms the mutual connection legal framework, and consummates our country other human rights legislation work, to include the right of privacy the rights of citizens to enjoy the construction legal base and the employment platform reasonably.The third part the criminal justice procedure which said based on the preamble inevitable can with personally the right privacy rights and interests relations tense reality, emphasizes the criminal justice when the investigation crime, plays the punishment role cannot is only suitable the citizen as the method and the tool, but must take the rights of citizens not to violate, regardless of this kind of violation is produces in the crime process produces in the punishment crime process. When pays attention to the rights of citizens, not only need pay great attention on the citizen body's injury, must pay great attention in the civil spirit the injury, including already received and is soon possible because of the lawsuit behavior to produce. Confusion which bring regarding the criminal justice and the right of privacy conflict, seeks the solution with every effort the method, reduces or limits bath's conflict in order to the harm which brings to the society. Since criminal prosecution's function including punishment crime and assurance of human rights two contents, in cannot have in the deletion situation, how to deal with the two's relations. Is mainly that achievement most important safeguard function, this requests in the legislation including the judicial practice to determine that carries on the reasonable weight to conflict both sides, makes the best choice judgment, also cannot for the maintenance criminal justice's social function, but unlimited harm individual privacy rights and interests, also cannot for the safeguard individual privacy benefit, but sacrifices the penalty crime excessively the social function.In modern society, the people realize the consummation the legal procedure are gradually realize the democratic government by law foundation, the procedure consummation are the keys which the government by law and the rule by people difference produce. The modern government by law's essential feature, is the national right the legal restraint, and after restraint causes the state power as for not to pose the threat and the harm to the citizen individual freedom. The people may complete the self-right using the legal stipulation the protection, the resistance state power control, in this significance, Law of Criminal Procedure may realize the above conception through the strict effective stipulation.