Study On Private Detective's Participation In Criminal Investigation

In the 1990s, Private detective, as a special industry, began to appear in Chinese coastal cities. After 20 years of development, Chinese private detective industry has a certain size. Some private detectives look for more from the traditional fields of civil and commercial matters to the field of criminal investigation in recent years. However, at present, there are no special laws and regulations in private detective industry, but only the"Notification of Prohibiting Setting Up Non-governmental Organizations by the nature of Private Detective", promulgated by the Ministry of Public Security in 1993. It banned private detective agencies. But the government failed to curb the broad market demand, this industry has never vanished. Instead of letting it walking the edge of the law, it is better to adopt legislation to clarify its legal status, and use legal means to effectively manage the private detective industry. Criminal investigation is closely related to the basic rights of citizens, such as personal liberty, life security, etc., and the emergence of private detectives needs legal norms urgently. In addition to the introduction and conclusion, this paper consists of four parts, totally about 36,000 words.The first part is an overview. In order to make the reader have a comprehensive understanding of the private detective industry, this paper firstly clears the concept of private detective, private security and criminal investigation, and gives brief introduction about the development history and current situation of private detective industry in Western Countries and nation. This paper introduces the concept of criminal investigation, covering all the investigations in Chinese criminal litigation, and divides criminal investigation into the power-oriented survey and the rights-oriented survey. The main body of power-oriented survey includes investigators, prosecutors and judicial personnel; the main body of rights-oriented survey includes criminal suspects, defendants and lawyers, private prosecutor and his attorney. Private detective, who commissioned by the client involves in criminal investigations, belongs to the rights-oriented survey.The second part conducts a comprehensive demonstration about the theoretical basis for private detective to intervene in criminal investigation. At first, this part demonstrates the legitimacy of private detective to intervene in the criminal investigation. From the perspective of public choice theory, private detective, as a profession which safeguards the lawful rights and interests of citizens, is an important form of socialization of public safety services. From the perspective of private remedy, private detective is a reflection of private remedy in the public area of law enforcement, because private remedy has legitimacy in a certain range. Secondly, in the necessity, private detective involved in the criminal investigation contributes to identify the facts of the case; contributes to protect the litigation rights of the parties; contributes to make up a deficiency of police, and to monitor and restrict the exercise of the power of state investigation. At last, this part analyzes of the feasibility of private detective involved in the criminal investigation. In social conditions, China has a large number of private detectives as practitioners, and at the same time, private detectives involved in criminal proceedings also have huge social needs. In legal system, the Nice Agreement and the new Distinction between Goods and Services Trademark Registration Table which China has joined in allow private detective companies to register trademarks. In addition, the principle of relying on the masses in the Law of Criminal Procedure, also provides a legal space for private detectives involved in criminal investigation in advance.The third part responds to each of the dissents that private detectives become involved in criminal investigations. With regard to the status of private detectives and the legality of evidence collection, I recognizes that private detectives do not have a legitimate legal status and qualification of evidence collection at present in China. But"the provision"enacted by Ministry of Public Security in 1993 no longer meets the needs of social development, we should adopt legislation to define the legal status of a private detective explicitly and give private detectives the qualification of evidence collection. In respect of the dissent that the private detective infringes power of investigation of the state, conduct of investigations of private detectives belongs to rights-based surveys and do not have the mandatory force, and it does not and can not exercise power of investigation of the state. In respect of the dissent that the private detective infringes citizen's right of privacy, the paper first clarified the meaning of privacy, and then took an analysis based on the theory of tort liability on civil law. The author think that there is no necessary link between private detective's involvement in the criminal investigation and invasion of privacy. The author does not deny that there is some confusion in the industry of private detective currently, but the existence of these problems is caused by the deficiencies in the related legal system to a large extent, and we can effectively control it by improving the system. Part IV establishes rules of the private detective's involvement in the criminal investigation. With regard to the legislative framework, at first, Ministry of Public Security should issue departmental regulations, such as"Regulations of private detective industry " .and then National People's Congress or its Standing Committee should formulate a special "private detective Law" and amend the existing Code of Criminal Procedure to increase the provisions on private detectives when the time comes. In the aspect of industry access, the legislation should clearly provide for a more stringent personnel qualifications of private detectives and access conditions of private detective agencies. With regard to Code of Conduct, a private detective's investigation and evidence collection must be based on the principal's legal commission; a private detective can take part of the secret investigative techniques according to the needs of the survey, but the use of covert investigative techniques can not violate the prohibition provisions of the law and legitimate rights and interests of others; the Code Should define the specific scope of the involvement of the private detective in a criminal investigation in acceptance range and sphere of activities. With regard to the rights and obligations, private detectives enjoy the right to have access to truthful information, the right to query, the right to refuse the investigations and the right to supervise. At the same time, private detectuves assume the obligations of loyalty, informing the key facts, confidentiality and reporting. With regard to the supervision and management, Judicial and administrative departments supervise the private detective agencies and their employees through the registration, evaluation, training, fees and other sectors and develop a set of comprehensive private detective professional ethics and disciplinary norms, strengthen the autonomy of the private detective industry through formation of various industry associations at the same time. With regard to the liability, practice activities of private detective may arise liabilities for breach of contract on the Civil Law and tort liability; Administration of Justice Department find that the existence of illegal act of private detective agencies or employees ,they can pursue the responsibility of illegal administration. We should extend the subject of crime in offense of false evidence in Article 306 of the Criminal Law, the defender in Article 306, destruction of evidence by law agent, fabrication of evidence, prejudice to the criminal offense to the private detective.Finally conclusion discussed the attribution of the right of criminal investigations. The authors question the exclusiveness of administration of justice that the right of criminal investigation belongs to the state exclusively. The right of a criminal investigation should have double attributes; as a judicial authority, it is designed to belong to the investigative organ and the accusation institutions; as a litigation rights, it belongs to the defense, including the accused, counsel and private detectives.