A Study On The Due Process Of Criminal Search

In recent years, with the development of society and the advance of science and technology, new types of criminal cases become complicated, organized, intellectualized and concealed, which has become an indisputable fact. This phenomenon poses a severe threat to the work of criminal investigation. Criminal search, as an important measure of investigation, has a great value to the collection of evidence, the detection of crime, the maintenance of the security of the state and society. The practice has also proved that the criminal search is one of the effective measures in cracking difficult uncovered cases. However, searching is state power and essentially belongs to the executive power, which is bound with the nature of the danger. If it is used improperly, it easily becomes a tool of violating civil rights. Therefore, how to regulate the exercise of the searching power and prevent the abuse of the state power of the detective organ have become the urgent subject that criminal procedure in theory and practice must face. The countries that practice the rule of law in the western world have conducted a comprehensive specification and control to the practice of measures of criminal search in order to protect rights and interests of the citizens. They generally demand that criminal search must carry out the principle of proportionality and that of legal and judicial reservation, take strict judicial writs measure to control criminal search, and they set up the substance of the elements launching the criminal search and strict procedures regulating it, and establish a strict system of rules of evidence to rule out the possibility of unlawful search by police and to protect the legitimate rights and interests of citizens, in order to limit the criminal search in a reasonable range. The law of Criminal Procedure of China and other laws and regulations have some provisions for the criminal search, but these provisions are not comprehensive and they show a strong tendency of orientating authority, which cause the abuse of search power in judicial practice and thus violate basic civil rights of the citizens. At the same time, the research on the legal control of the criminal search in theory is not deep enough. As a result, the construction of a reasonable criminal search system faces a series of problems. Therefore, it is necessary for China to draw on the experience of the western countries to legally control the criminal search in order to change the status quo of the system of our country's criminal search in legislation and practice. To achieve the goals of controlling crime, protecting human rights and to ensure the good mechanism of the power of criminal search, China should follow the strategies of using one power checking and balancing another power, the right restricting the power, the procedure regulating it and the result limiting it to construct a kind of legal mechanisms reasonably controlling the abuse of searching right. In this paper, some advice on improving the legal control of criminal search are put forward through studying the relevant legislation in western countries and absorbing their successful experiences in this aspect. As for how to limit the launch of the search procedure, it can be achieved by redistributing searching power and defining substantive requirements of the criminal search. As for how to regulate its execution, it can be realized by strictly stipulating different compulsory conditions. And as for the results of criminal search, it can be constrained by ordinary and constitutional relief mechanisms.