On The Protection Of Privacy In The Criminal Proceedings

This article consists of three chapters. The first one is the basic theoryof privacy in the criminal procedure, including the concept, quality,subject and object of privacy in the criminal procedure, trying hard to finda fairly more distinct boundary of privacy in the criminal procedure; thesecond part explores the practice of privacy protection in the criminalprocedure and chiefly discusses the concrete privacy protection questionsthat involves in each link of criminal procedure; the third chapter is thetheory to perfect the system of the privacy protection in the criminalprocedure.The privacy is an original concept in the civil law. There is no relatedclear and definite regulation in the constitutional or criminal procedural filed.As human society continues to increase awareness of human rights, the ruleof law and civilized progress, privacy as "the first fight of human rights" andtheir access to "the fight against crime, protection of human rights "for thecriminal responsibility of vision research, and there will be a real possibilityof its historical inevitability. In the basic theory inquirement about theprivacy in the criminal procedure of first part, the research method ofconcept analysis is chiefly used , in accordance with the blurred naturecharacteristic of not certainty as well as the humanity branch of learningresearch of privacy concept itself, uses for reference consulting on thefoundation of multitudinous home and abroad theories, and tries puttingforward in the criminal procedure concept of privacy, respectively from itsquality, subject and object. Roughly outlines the privacy in the criminalprocedure: The privacy in the criminal procedure is the basic right ofcriminal procedure; the rights of privacy in the constitutional meaningshould be stressed in criminal procedure. It is the basic right of citizen, andis the concrete practice of human rights in the criminal procedure; Its mainsubject should contain prosecute, victim, witness and the other participantsin proceedings; The objects of privacy includes individual's private life, thefamily and the residence, communication secret and individual's datamaterial as well as reasonable expectations of privacy. The criminal procedure aims at exposing and hitting crime, as well asprotecting the human rights, and defending the society. Making the fact andtruth public is what it pursuit of, but hiding the fact from being covered isthe privacy sought for. There must be conflict and contradiction between thepublic power of nation administration of justice and the privacy right ofindividual in the criminal procedure. The second part of this article wasinquired into the various concrete link in the criminal procedure, and each ismutually related the practice question of privacy protection in the system,especially the investigation of the questioning, search, mandatory sampling,monitoring and other sectors; the opening trial system at the stage of trial;the monitoring at the implementation phase; the record dealing after theprosecuted returned to the society; victim protection system; witnessprotection system which are closely to protect the privacy. In this part of thediscourse is the main classification, the comparative study of varioussegments system may infringe on the different morphology of privacy,corresponding to the extraterritorial system for observation, comparison andanalysis, and combining the second revision of the Criminal Procedure Law,based on Mr. Xu Jingcun's proposal to discuss the relevant specific aspectsof improving and perfecting the system.The protection of privacy in the criminal procedure is a grandproposition. Except the individual aspect should be stressed, there is a largenumber of work should be done at the macro-level throughout the criminalprocedure system. The third part of this paper is discussing the improvementof the protection of privacy in criminal proceedings. To protect the privacyproperly, we should use the judicial power legally and reasonable,strengthen the judicial ethics, perfect the right relief measures. The privacyin the criminal procedure should be protected, but also should be restricted.The public interest should be treated in the same way. The balance betweenprotection and restriction is the due process.