The Theory Of Monitor System's Construction

Since the last century 60-70 ages,the global crime situation difference has been stern. The performance are getting more and more for quantity,the type is getting more and more diverse,the implementation is getting more and more covert,Solves is getting more and more difficult.It brings the enormous pressure for the detection work.Facing this kind of new situation,many new detection methods arise at the historic moment.Supervises is one of the most widespread use of countries' detection.The monitor,is one kind of secret detection measure that refers to the detection institution or the detectives to collect the evidence,to investigate thoroughly the case to implement,the secret hearing suspect either is related person's with other people between telephone conversation or the communication,and records the related information. Technically speaking,the monitor may divide into the communication monitor and the conversation monitors two broad headings;Legally speaking,the monitor may divide into the second who agreed without the litigant to monitor and to pass through a side litigant agreed agreement monitor.The monitor's characteristic includes secret,the technical nature, compulsory and legal and so on.The monitor measure's existence has the rationality.Now the crime situation's evolution mainly manifests in "much","difficult","new".The crime situation is exceptionally stern, the monitor is cracks down on the crime the realistic need.At the same time,the monitor is also the powerful tool that cracks down on the crime.It provides the massive clues and the evidence for the detection work,can speed up solves the advancement,raises the working efficiency,causes the detection main body to hold the detection work the initiative,achieves effect which makes first move and gets control.Moreover the monitor also has the solid theory basis,including in foundation legal principle theory of law basis and Law of Criminal Procedure basis.However,monitors brings many blessing for the criminal justice,also has the enormous risk.The monitor not only possibly encroaches upon citizen's constitution right, including the right of privacy,the freedom of speech,the communication freedom as well as the housing frees from aggression the right and so on,simultaneously also possibly invades the normal social order as well as causes,the judicial ethics difficult position.Therefore,the monitor measure that is similar to "the double-edged sword" the detection measure well, enables its positive role to obtain the greatest degree display,at the same time its possible to encroach the citizen human rights the negative effect to reduce seriously to the lowest degree. The monitor system's legalization is an ideal solution.The monitor's legalization way may determine that its valid status,causes its may be separated from the awkward situation,by displays its attack crime well the positive role,simultaneously has also manifested in the modern criminal prosecution the right procedure demand.Moreover,through will monitor the measure to integrate the legalization track,may reduce its negative effect to the most mild degree.By monitor's legislation,is advantageous in safeguards the citizen human rights, simultaneously may prevent the illegal monitor,further assurance of human rights.Obviously, monitors's legislation is very essential.The present main country's local monitor legislation is at the quite perfect condition. Although various countries have the difference in historical development and concrete system's aspects and so on establishment,but the monitor system are t in above the legal system movement track..Looking over the overseas monitor legislation pattern,it may divide approximately into three kind of patterns:"the human rights safeguard pattern","the crime control pattern" and "the right balanced pattern".However,China's Criminal Procedure Law has not made any provision for eavesdropping,Only in the "national security" and "People's Police Law" in the general provisions of the technical detection measures.This situation and the widespread practice of monitoring the application of practices contradict each other,but also overlooked the use of legal and regulatory system to monitor the application of the necessity.Therefore,the construction of China's monitoring system has been imperative.To integrate the monitor into the legislative scope and causes it to realize the legalization, the monitor's suitable principle must be clear.This kind of basic principle is the concrete system's basic spirit is,to monitors legislative the consummation as well as the monitor execution standardization has the overall direction and the promotion function.The monitor system's basic principle has the necessary principle,the corresponding principle is the proportion principle,the relevant principle judicial review principle and the judicial relief principle and so on.Our country's monitor legislation should be "the right balanced pattern" in the guiding principle.That because comparing with "the crime control pattern" and "the human rights safeguard pattern",it has the rationality,and more suits our country's national condition.Under this basic legislative instruction and our country's actual situation,the monitor legislative pattern must choose drawing close to the lawsuit statute book pattern legislative style.This is also advantageous in maintaining unified and the harmonious criminal prosecution legal framework,is advantageous in grasping with the applicable legislation.Simultaneously considering our country "People's Republic of China Law of Criminal Procedure" the revise plan was already raised the legislative program,which is a unmissable turning point,it must refer with case's detection work existence relevance and the feasibility.The monitor's application must to be hand in to responsible the People's Procuratorate by the detection institution to verify the monitor,the People's Procuratorate to meets the monitor condition to issue the monitor instrument of ratification legally.The authorization must include the following content:Monitor's decision and Execution organ, executing monitor detectives' name and status,and so on.The authorization of the monitor satisfy the following several aspects the prerequisite:It can only be suitable for the significant complex criminal case,can be used while in uses the conventional detection method to be unable or very difficult to investigate thoroughly the case fact in the situation only then to be possible to be suitabl.The material obtained by the monitor should be have two aspect characteristics completely:the proof strength and the evidence ability.It in nature is the legitimate evidence, definitely be used directly in the trial program,It have takes the hearing evidence evidence ability,must be possible to take the hearing verdict the basis,but cannot remove outside the court.But in view of the fact that monitors could encroach upon citizen's basic right intrinsic risk seriously,the consequence which must to possibly present the illegal monitor which and creates in the law to give the standard,establishes the illegal evidence elimination rule to prevent the illegal monitor being in flood.In addition,the supplementary monitor evidence which produces regarding the monitor process,must adopt the procedure which forbids relatively,but is not denies the supplementary monitor evidence completely evidence ability.In addition,we must pay attention strengthen to monitor in the procedure the individual right protection,which point constructs and consummates our country's monitor to legislate is very important.This article,about 38,000 more than the words,intended to monitor the construction of legal system conducted a preliminary study,which can be divided into a total of four chapters. Among the first chapter of the eavesdropping from the concept and to define the nature and conduct of the general classification,and further with the search,seizure,and so easily confused with the concept of a comparison;Papers from the first chapter of the second practice and theory of two fully discussed the rationality of the existence of monitoring, followed by the monitoring of the inherent danger of an analysis,and on how to resolve the reasonableness of the danger of the conflict between the proposed solutions,That is the true sense of Construction of China's legal system of monitoring;Chapterâ…¢of the first papers to the United States,Britain,France,Germany and Japan are quite a few monitor legislative representative of the national monitoring system for the understanding of vertical and horizontal comparison from the perspective of the wiretapping legislation several models The inspection and research,and a list showing the way out;The final chapter on China's legal system of monitoring the specific construction of a thought,from the application of the principle of the Legislative Council option mode,monitor the conditions of application,the application and approval process,the implementation of procedures,rules of evidence and the right to the relief of seven parties has made norms.