On The Temporary Physical Control Of The Police In Criminal Cases

Criminal cases, especially the violent criminal cases, often have the feature of abruptness. Allowing the police to exercise the temporary physical control power when a criminal case is very likely to happen or in a very short time after its occurrence to avoid the occurrence or expansion of the damage, or to prevent the annihilation of evidence and to preserve the evidence is extremely necessary, and this is also the universal practice.This paper begins with the concept of the temporary physical control power with analysis of its types, characters and attributes. In practice, this power is exercised in various ways. The most common and important ones are inventory, retention and immediate arrest. All of them have the characters of urgency, temporariness, relative simpleness, and involving great legal interests. They also demeonstrate a strong criminal character.Subsequently, I address the theoretical basis of the temporary physical control power. Public safety requires that the police who arrive first at the scene have the right to impose temporary physical control in the face of the occurrence of criminal cases; alienation of the rights of citizens becomes the source of the temporary physical control power; and the theory of balancing crime control and due process values also provides its rationalization basis.To analyze a system, the use of the comparative method is essential. This paper conducts two comparisons. The first part compares and analyzes the temporary physical control system and search and seizure system, road inspection and border inspection systems, and weapon use system, trying to find out the distinction and the overlaps of these systems through comparison. The second part studies the temporary physical control in other jurisdictions by referring to large amounts of data. In this section, I compare the adversary, inquisitorial and mixed models, through which, I address the similarities and differences among various countries in dealing with the temporary physical control power, in a search for experience and lessons useful to the reform and improvement of the China's system.Then, I analyze the relevant regulations and the problems of China's temporary physical control system. Through comparison with the previously addressed extra-territorial structures, I find out that whether from the viewpoint of legislation or from that of practice, our system has certain shortcomings that need reform and improvement.Accordingly, I put forward the directions of reform: the principle of mandatory investigation legalism prior to the exercise of power, the principle of proportionality in the exercise of power, and the principle of judicial control after the exercise of power. What is more, I put forward the idea of reforming and improving the inventory, detention and immediate arrest systems. I believe that although our temporary physical control system has some problems, we can achieve the goal of balancing the public power and the freedom of people through reforms.