| Entering the 21st century, with China’s social and economic development, In particular of the rapid development of information technology, crimes against state security and criminal offenses have new features never seen before. That concealment and intelligence crimes emerge in large numbers has brought unprecedented new challenges to national security agencies and police detective work, and also proposes higher requests to the handling capacity of the department of investigation. Facing with this situation, the desire of case investigation department on the use of technical means for investigation is very strong. Around the world, no matter socialist countries or capitalist countries, in response to the criminal acts of continuous innovation means, frequent changes in the form and increasingly serious trend, technical investigation measures are used in criminal investigation process without exception. On March 14,2012, the existing Criminal Procedure Law is adopted in the Fifth Session of the Eleventh National People’s Congress (hereinafter briefly named the new criminal procedure law). Article 148 to 152 five articles of the eighth section of the second chapter of the law are set for ’technical investigation’, including the application type, the executing organ, applicable procedures, the applicable time limit, applicable subjects, investigator confidentiality obligations, other units and individuals cooperation obligations and legality of technical investigation to secure material evidence of cases of technical investigation measure. However, due to various constraints, the regulations of ’technical investigation’ are not perfect. The regulations of technical investigation measures of revised new criminal procedure law are too principle and fuzzy, easily to lead to the theoretical debate and practical chaos. For example, the applicable scope of the technical investigation measures is in general terms, the applicable subject is too restrictive, operability of applicable conditions is not strong, the applicable limitation provision is not science, lack of the supervision of neutral body, sanctions of illegal use or disclosure of the data obtained by technical investigation measures are not enough, achieve the balance between the technical investigation and the guarantee of human rights and other issues. The author will combine experience and theory of foreign legal states. Chapter 1 is the introduction part. The author starts from the purpose and significance of the theme, analyzes the necessity of investigation department’s taking technical investigation measures, summarizes the strengths and weaknesses of relevant technical investigation regulations in the new criminal procedure law holistically, describes the current situation of some scholars’researches on the theme in China briefly, proposes the thinking pattern and methodology of the study, and finally points out the innovation in the paper. Chapter 2 is a summary of domestic technical investigation measures. On the basis of some scholars’definitions of technical investigation in China, the author concludes the distinctive features of technical investigation, and elaborates on the status quo of laws and rules about technical investigation in China so as to lay a foundation for the application of domestic technical investigation measures in the new criminal procedure law. Chapter 3 is about the principles of applying technical investigation measures in western countries. The author starts the study from two perspectives, the system in Britain and America and the system in the mainland, China. Through comparing different systems of technical investigation measures in different nations, the author concludes the common principle of applying technical investigation measures in western law-governed countries, and enlightens the in-depth reflections on the application of technical investigation measure laws in China. Chapter 4 is about the application and problems of technical investigation measures in the new criminal procedure laws. The author conducts deepens and explores into the subject, object, time, term, scope, conditions and procedure of applying technical investigation measures in the current criminal procedure law in China, expounds on and summarizes the problems and deficiencies of applying standard technical investigation measures domestically, proposes the suggestions on optimizing relevant laws and rules as well as feasible suggestions on perfecting domestic technical investigation measures. Chapter 5 lists the specific suggestions on perfecting the legislation of technical investigation measures in China. Under the specific social and historical background, the author fully refers to the current law-governance environment, cultural traditions, psychological durability in public, economic development and other factors and raises the advice on optimizing the domestic legislation of technical investigation measures in an attempt to reach the goal of instructing judicial practices. |
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