The Procedural Regulation Of Personal Inspection In Investigation

Physical examination is a kind of investigation directly against the human body, which may infringe some basic rights of the persons being examined, such as the right of ownership of body, physical healthy and privacy etc. in the process of its implementation. The system of physical examination in countries outside the region involving Britain, Germany, the United States and others have also appeared the expanded scope of the examination object, the consumption of judicial resources in quantity, the violation of the principle of proportionality and the basic requirements of due process, resulting in the severe unbalance of litigation value and other issues in their practices. In order to improve the system of physical examination to protect the basic rights of the persons under examination, Britain endows these persons with the rights to know when forced sampling, and strengthens their privacy during the examination, Germany emphasizes the needs to satisfy “necessity in essence” when physical examination starts and has established a two-way compensation relief mechanism in relief right, the United States strictly implements the principle of warrant requirement in the process of approval procedures and has established a combined DNA index system(CODIS). By the implementation of these beneficial practices, Britain, Germany, the United States eventually form their distinctive physical examination systems. Compared with the increasingly mature physical examination systems in the above countries outside the region, the system in our country is still at the primary stage. Since our legislation on this system has not been perfected, the number of laws is too scarce, the practice departments have to lay down department regulations as well as local regulations with lower precedency of legal effect for further supplement, causing the status of legislative chaos; the contents of these laws are simple and deficient, and lack of clear and specific provisions on some issues regarding physical examination classification, starting conditions, specific operations and right relief to the persons under examination. The implementation of physical examination system in our country is not rigorous enough that exists the phenomena in its actual operation that some investigators ignore the law for their own convenience, and some even are under pressure, or for the sake of their own performance, to abuse their authority to infringe citizens’ legitimate rights. For such problems as lack of detailed legislative stipulation, supervision and restriction system, and effective relief mechanism in our physical examination system, it is necessary to reform and improve this system adequately. Therefore, we should define basic principles for physical examination system, standardize the startup and implementation on mandatory examination, strengthen the rights protection of the persons being examined and perfect sample processing and information security mechanisms etc. by lawmaking, to make the physical examination become an important system in criminal investigation and fully safeguard the basic rights of the persons being examined while effectively cracking down on crimes, for the purpose of improving our criminal investigation ultimately.