On The Physical Examination In Criminal Procedure

The value of criminal procedure includes items such as justice, order and effectiveness. A proper criminal procedure process is the basis and platform of the endurance to substantive and procedural justice as well as the punishment of criminal and the maintaining of the society order. With the development of science and technology, sophisticated, intelligent, and investigative measures is widely used in criminal procedure. And the inspection of the defendants and the third party has gradually become an important weapon to identify the real cases. Criminal physical examination includes surface and internal inspections which may endanger the physical integrity, health, freedom and even the privacy of the people who are being inspected. So it is necessary to carry out strict rules of checks on the criminal laws of personal regulation. However, there is no concert rules about criminal physical examination in China, and criminal physical examination are drifting outside the law. The study of common law and that of civil law as well as relevant legal principles, such as the principle of legal reservation, the principle of proportionality and the principle of judicial review of the legitimacy of the regulatory process can play an important role in the protection of human rights. This article adapts the comparitive method and puts forward the view that the law of criminal physical examination should be perfect, seeing from the legislation and judicial practice in China.This paper is divided into three parts:introduction, body and conclusions. The main body concludes four parts.The first part is the general theory of criminal physical examination. It expounds the concept and nature of the physical examination. Through the analysis of criminal connotation, extension and nature, we can distiguish the difference between the criminal personal check and the similar criminal measures, which include an inquest, searching identification and simpling. And it is important to the legislation. In addition, the conflict of value, resolution of the criminal physical examination and the relations of civil rights are discussed in this chapter, whose basic value are the freedom, equality, order, security.The second part analyszes legislative provisions and theoretical views, through the extraterritorial criminal investigation of civil law and common law systems in major countries and regions, from the aspects of decision-making process, implementation and relief aspects of criminal personal check. Based on the above, author summarized the classification and common principle of criminal physical inspection, whose purpose is to provide a comprehensive inspection system to the criminal personal check in China.The third part analysis the flaws or shortcomings in the legislative system, based on the legislative status and justice system of the the criminal physical inspection, from the three dimensions which are starting, implementation and relief of criminal personal check. In criminal remedy of criminal personal check, there are rarely regulating about the exclusionary rule of evidence in the illegal, punishment mechanism, and sample management. The part finds and analyzes these problems in the consciousness level, the reasons for the legal aspect.In fouth part, from the perspective of comparative law, the author combines the useful experience of foreign countries and our national condition, and provides the advice of improvement from the start of criminal physical inspection, implementation and enforcement.