On The Search Warrant Of China

Search warrant originated in Britain, the reason of its birth is to protect search crew from being sued in civil litigation. But it changed in the following hundreds years, the search warrant have being not only authorized documents for the search crew, but also the way to restrict the power of the search crew. The values of restricting power and protecting the people's right are being praised highly by legal states, even civil law country have brought search warrant to their counties, and made it a way to restrict the search power. We want to build a legal state, the search warrant must became one of the impotent points to be changed because of its value. This article began from the function and value of the search warrant, and then compared the main legal countries'search warrant, at last, launch a detailed discourse about how to perfect our search warrant. This article is divided into four parts:The first part, the basic issues about search warrant. This passage main elaborate the conception, value and function of the search warrant. The function of the warrant is very important part in this article. The research of the warrant's function is not more in our country now, and the research mostly restricted to the function of limitation of power. But the function of authorization is also very important to us, because only when we know this function, can we make a right choice for our search warrant's perfection. The value of search warrant is the significance of modern search warrant, is also the reason why we research warrant and complete our search warrant.The second part , the compare research of foreign countries'search warrants. This part of western research main focus on giving a brief introduce of search warrant in foreign countries. Through the introduction of America, Britain, France and other countries'warrants, and through contrast, analyze the difference of the reasons, make them as examples for our warrant's perfection. Even civil law countries, which law system is very perfect, warrants in these countries are also different from each other, the reason is that they respected and adapt to their own culture and tradition. So, our search warrant's study and legislative process should also adhere to our own culture and tradition, not blindly copy the foreign legal system.The third part, the history and development of our own search warrant. Our modern search warrant begin from the late Qing Dynasty, and have a one-hundred history. The appearance of search warrant show the progress of our society and the perfection of our law system. But the long history didn't change its function as search's instrument.The fourth part, the current situation and reason of our search warrant. After instructing series of problems in legislation and practice, then analysis the reasons of these problems. Our tradition and current national conditions are the basic reason of these problems. At the same time, the tradition and national conditions made the direction for our search warrant's perfection. Our warrant's perfection should build on the traditions and national conditions.The fifth part, the envisagement of our warrant's perfection. This envisagement is base on our traditions and national conditions. The short-term tentative idea: the perfection should base on our existing power relation, make the change in technical aspects, through the separation and checks of power to ensure the implementation of the search warrant. The long-term tentative idea base on judicial independence and review, that means establish a search system contains judges'examination and supervision.