On The Legal Regulation Of Technical Investigation Of China

These years technical investigation has been paid more and more attention to in our country. Not only the theory circle but also the practice circle have put a new premium on it and developed heated discussions on it. Current research findings in our country are embodied in the research on the specific technical investigation methods such as wiretapping, on the technical covert investigation and the comparison with the relevant institutions in other countries. In a word, the current research on the legal regulation of technical investigation in our country is still in a preliminary stage; as a result, there are some independent values on the legal regulation of technical investigation in macro-perspective as follows: Firstly, it can fill up a deficiency of systematic study on the legal regulation of technical investigation. Current research on technical investigation is lack of overall and thorough knowledge and the research on the specific methods of the legalization of technical investigation is insufficient. Secondly, it can fill up a deficiency of the methods of comparative research on technical investigation in our country. The goal of the research on procedural regime is to improve procedural regime in our country. In order to find the effective paths of the legal regulation of technical investigation and guarantee the goal of technical investigation that is to fight against crimes and assure human rights, we should take the situation of our country into account when doing this research.This paper includes four sections, more than 30 thousand words.First part in this paper briefly describes technical investigation. As a result of the concept of technical investigation in our country has been conventionality, this paper has been accepted the general concept to avoid confusion. Technical investigation refers to the use of high-tech means and equipments to detect clandestine activities carried out collectively. Comparing with the characteristics of the traditional investigation, the characteristics of technical investigation can be summarized as follows: technicality, confidentiality, highly aggressiveness, enforceability and dependency.Part 2 studies on the current situation of technical investigation, and analyzes the causes of it. This part explores the deficiency and adverse impact of technical investigation system, and makes definite the necessity of legal regulation of technical investigation. At present, Criminal Procedure Law in our country does not specify technical investigation, the statute of technical investigation is only in "National Security Law" and "Police Law" which are too general and obscure. The situation of lack of legislation of technical investigation has brought adverse influences to the practice of technical investigation, which tends to lead the abuse of power, the lack of supervision to the power, the lack of remedy to civil rights infringed by the technical investigation; and the blank of the legal authority makes the material get from the technical investigation cannot be legal evidence. The end of this part discusses the cause of current out-dated situation of technical investigation in our country from the obstacle of concept and the legal system.Part 3 discusses the necessity and feasibility of legal regulation of technical investigation which is logic starting point of this paper. The goal of legal regulation of technical investigation is to protect human rights under the premise of the rational and legitimate of technical investigation. This part begins with discussing legal regulation of technical investigation is the necessity of assurance human rights, and then analyses it is also the necessity of fight against crimes, the requirement of the legalization of investigation and the inevitable tendency of the special investigation methods. And then discusses the feasibility of legal regulation of technical investigation in our country. First of all, the doctrine of ruling the country according to law and the concept of limited government which has been widely accepted provide political guarantee to technical investigation. Secondly, the improvement of the citizens' legal consciousness provides quality assurance of the technical investigation. Thirdly, in recent years the developments of the criminal procedural theory in our country, especially the intensive study on technical investigation provide the experience to the legal regulation of technical investigation in our country. Finally, the legislation in foreign countries and the startup of the amendment of the Code of Criminal Procedure in our country provide an advanced experience and good opportunity to the legal regulation of technical investigation.Part 4 demonstrates the idea of the legal regulation of technical investigation in our country in detail. Firstly, this part introduces the basic principles of the legal regulation of technical investigation in our country: Proportionality Principle, and there are three sub-principles of the Proportionality Principle; Relevance Principle; the principle of judicial review; privacy protection principle and the principle of judicial relief.At the basis of the principles, the author discusses the specific regulations of technical investigation of our country in detail and focuses on the subject of technical investigation, the applicable targets, the application of procedures, duration, the right to relief, as well as the reporting system. The authorizer emphasis the different regulation methods, according to the violence of rights of particular technical investigation. Finally, the author gives the assumption that we should take the balance between fighting against crime and assure human rights as the yardstick of exclusionary rule of evidence.