Criminal Search System, Under The Vision Of The Rule Of Law

In criminal procedure, the criminal search is one of the important investigation measures for finding out suspects and collectting crime evidence. But as a coin have two sides, it's easily abused. This would not only cause great damage to the rights of criminal suspects, but also infringe the fundamental rights of other citizens. For these reasons, those law developed countries and rigions have set up strict rules on the criminal search, such as rules of the initiation, process of search and the legal consequence of the illegal criminal search, some countries even rose to the height of the Constitution. Looking through the criminal search of China, we can find that the current system is too summary and lacking of some important rules. In addition, the current system lacks the necessary restrictive rules for the activity of criminal search. Thus, it is inevitable that the criminal search will be abused and the rights of the citizens' be seriously injured. Therefore, it's an important problem how to perfect China's criminal search rules combining with China's situation.With the means of comparative research, this thesis investegates the system of search in the main law developed countries and regions and sums up the general principles, then the thesis analysies the current system of search in our country and finally points out the main defects and proposes some suggestions to set up a scientific and resonable system of search.This thesis amounts to about 35,000 words, including five parts.In the introduction, the article briefly introduced the theoretical premise of this thesis and the writing purposes. The article maintains that, as a criminal investigation to find criminal evidence and to seize the suspects, the search is necessary and justify, but it also infringes the rights of the suspects and others. So the search needs to be strict regulaed. The article points out that lacking of constraints is the source of the problem existing in our criminal search system , we should focuse on restricting the power of criminal search to improve it.The first part is the general theory of criminal search. Firstly the thesis clarify the origins of China's search system. There are concepts similar to search in ancient books, but our modern search system has a direct relationship with the collapse of the feudal system, the concept of human rights. The search as a justice system is the result of studying from the western by the Qing dynasty legislators. Secondly the author elaborates the traditional meanings and connotations of development of the concept of search, and pointed out that the legal concept of the search shoud make a slight adjustment with the rapid growth of technology. The article then summarized three characteristics of the search: search behavior is mandatory, search procedures is statutory, the result of the search is duality. The search can be categorized into many classifications according to different norms. At last the thesis discourses the functions of search procedureon which including authorization function and limited function.In chapter two, by looking through the criminal search systems of America, Britain, Germany, France, Italy, Japan and TaiWan, the author investegates the system of search in those law developed countries and rigions in the following aspects: the grounds to initiate the criminal search, the range of the object for the criminal search, the distribution of power, the procedure rules for criminal search, illegal search and evidence-forbidden.In part three, the thesis sums up the essential principles of due process of criminal search. The essential principles should include judicial writ doctrine, proprtion principle, principle of deciding procedure by law and principle of safeguarding citizens' basic rights, which embody the basic spiritual belief of the search in modern criminal litigation.In part four, the author analyzed the short comings and main problems of China's criminal search system. By comparison with the legislation practice of the law developed countries and regions in the world, the thesis pointed out that the defect of our system searches mainly lies in: lacking of neutrality judicial review in search; the standard of proof in search is rather low which can't protect the citizen properly; the search warrant do not comply with a "specific" requirements; the enforcement procedures is humble, lacking of autonomy and independence; the warrantless search lacks of a mechanism of check and balance; ignoring the safeguard of citizens' basic right in legislation ortentation; and last laws and regulations can not meet practical needs effectively. In general, China's current system can not work effectivily in detecting crime, accessing evidence and finding the suspects. It is a major defect in the protection human rights which is not in line with the requirements of the rule of law.In part five, The part is the perfection of search system in our country. On the base of above analysis, the author claims that the criminal search system of our country should be perfected from following aspects. Firstly, we must change the legislation orientation and really take respection and safeguarding human rights into consideration. Secondly, we should pefect the regulations about the principles of search, perfection of starting search procedure, discussing it mainly from defining the reason, adopting writ doctrine, restricting search time ,subdividing the regulation about body search, ordaining different conditions according to different object, undertaking to keeping secret and judicial review for search. The third, it is necessary to establish perfect supervisory mechanism for search at the present time. The fourth, discussing that the perfect remedy system for illegal search should be established in our country. We can do it from following three aspects: giving the officers substantive sanctions who carry out illegal search, perfecting state compensation system and establishing perfect exclusionary rules for illegal evidence. And last, we should reconstruct the Attached search, set up the system of Emergent Search independently, and add the system of Consent Search to reconstruct a search procedure which can not only ensure freedom and safety of the citizen but also realize the need of the criminal control.