Our Criminal Search Privacy Perspective Of The Legal Regulations

As a kind of basic human rights, the right of privacy has obtained confirmation and protection from major international documents of human rights such as Universal Declaration of Human Rights and International Covenant on Civil and Political Rights as well as several important regional conventions over human rights. It is necessary to lay down corresponding controlling rules because the criminal rummage has direct connection with many constitutional rights such as privacy right. Currently, the study of criminal rummage in China is relative weak since the existing system can neither play an effective role in suing criminals nor provide necessary guarantee to ensure basic rights of the Constitution. In the legislation of criminal procedures, the rummage issue is roughly stipulated while there is less indirect rule ensuring the privacy right. Therefore, it is an extremely matter to pursue the balance between the control of criminal rummage and the protection of civil privacy right. The paper discusses the protection and improvement of privacy rights in the criminal rummage in five parts totally.Theories about the right of privacy and rummage are explained in the first part of this article. The right of privacy has four definitions. First of all, the right of privacy is related to the individual. Secondly, it is relevant to the "personal life". Thirdly, it also has connection with self-control. And finally, privacy refers to private information. As to the protection of privacy right, there are two methods that are often applied in the constitutions of countries over the world: on the one side, it gains positive protection from the national law and on the other side, it gets passive protection by abiding by the obligation under international conventions. Rummage is a kind of mandatory investigating measure carried out by the investigation bodies by searching and checking the persons, articles, residence and other physical space as well as virtual space such as computer and network in accordance with statutory conditions and procedure, with the purpose of discovering the evidence of committing crimes and finding while seizing the suspect.The necessity of controlling the criminal rummage is discussed in the second part of this article. Although the civil right is protected by the Constitution as well as relevant laws and it cannot by violated at will, it is never an issue of absolution since it can be limited to maintain national security and social order, enhance public profit and avoid urgent dangers. Therefore, it is necessary to impose some proper restrictions on the rummage while all behaviors of seeking public welfare and security for the country and society shall follow close to the line of procedural provisions.In the next part of the article, the author talks about the study of legal systems overseas by introducing the privacy right protecting system of foreign legal states through controlling the rummage, from the aspects of static and dynamic control. The static control of criminal rummage refers to method of laying down laws of criminal procedures to make the investigating staff to observe necessary rules in the rummage process, including the basis of carrying out rummage, the regulation on rummaging procedure, the rummage object and scope and so on. And the dynamic control of criminal rummage indicates the power of a neutral third party to examine the rummage activities of the investigating body, sign and issue the judicial writs and endow the power of conducting rummage.In the fourth part of this paper, profound probe is paid to the current situation of privacy right protection in rummage in our country. As a whole, the legislation over criminal rummage is too weak in China: few articles, inattentive content, highly abstract summarization and bad operability. In the next place, protection over privacy right is hardly mentioned in the provisions and laws, leaving a total blank space. The author analyzes the current situation of rummage in China from static control and dynamic control, while points out the existing shortages.On the basis of judicial practicing condition in our nation, the final part of this articles weights on providing perfect suggestions to control criminal rummage. As to the factor of static control: firstly, establish the essential reason of carrying out rummage; secondly, improve the rummage procedure by setting the rummaging time and its term of validity at first and then confirm the procedure of declaring rights; thirdly, determine the specific scope of rummage; fourthly, strengthen the control over rummages without certificates. When dynamic control is in question, first of all, the procuratorial body shall be the neutral third party to examine the application of rummage certificate; then an after-the-event examination system shall be established for rummages without certificates.