On Entrapped Evidence Collection In Enforcement Of Administrative Law

Obtaining evidence by setting a trap is greatly used in the process of investigating criminal, investigating and collecting evidence of civil case and investigating and collecting evidence of executive law enforcement. We have not yet set related legal system based on this in our country, and there is no consensus on this in educational circles. Whether these evidences can be used to decide on a verdict depend on many elements which include court's attitudes toward this, discretionary power of the judge, and the limitation and restriction on this. Besides, it has something directly related to the reform and completeness of the system of legal evidence. So it is necessary to make a discussion about this. And the research on this will enrich this area theoretically and support the law enforcement agency to make the right decision practically.This thesis consists of five parts, its contents are as follows:In the first part, the present researcher provides the basic theory of obtaining evidence by setting a trap. This part mainly elaborates some basic theory such as conception, classification and so on. Since the theme of this thesis is obtaining evidence by setting a trap in administrative enforcement of law, the writer here defines executive law enforcement from the very beginning. Because the obtaining evidence by setting a trap motioned in this thesis is in terms of administrative enforcement of law, so it is necessary for us to have a clear understanding of its definition and boundary. After that, the present researcher makes a conclusion about the definition of obtaining evidence by setting a trap through consulting the definitions gave by other researchers and the implications of temptation investigation in criminal proceedings. That is, it is a kind of means that in dealing with the special cases in administrative illegality, the law enforcement officials will use it to seduce the administrative counterpart to commit the offence in order to obtain the evidence. After having a clear understanding of its definition, the present researcher categorizes it into chance provided and criminal intent seduced respectively based on the categorization of temptation investigation in criminal suit. This part will give some definitions about its basic theory and make a further discussion based on this.In the second part, it will talk about obtaining evidence by setting a trap in executive law enforcement and the temptation investigation in criminal proceedings. Because of their similarity and the relative maturity of criminal proceedings in practice and theory, this part mainly talks about the relationship between obtaining evidence by setting a trap in administrative enforcement of law and temptation investigation in criminal proceedings. The writer first analyzes rules in temptation investigation criminal proceedings of English, America, German, and Japan, which have a more developed research on this area so that we can get a general idea about temptation investigation through introduction. Secondly, by listing two typical cases which adopt these two means, the writer analyze its connections and differences from perspectives of subject, object, content, result and so on. It looks like both of them are means of obtaining evidence, but they are different from subject and object perspectives. In obtaining evidence by setting a trap in administrative enforcement of law, its subject is law enforcement officials and its object is administrative counterpart. However, when it turns to criminal suit area, its subject is investigation organ and its object is criminal suspects who are seduced by them. From another point of view, both of them have similarities, their premise are that the objects have no idea about what is going on and they have the possibility of being used abusively. Through comparative analysis, we can have deeper understanding about obtaining evidence by setting a trap, and it also can set a solid foundation for further research.In the third part, it mainly talks about the credibility of obtaining evidence by setting a trap in administrative enforcement of law. In order to prove the unlawful act of administrative counterpart, administrative subject will set a trap to obtain evidence. However, we doubt this kind of evidence can be adopted and its efficacy. This part will focuses on these problems. Only by making an analysis about this can we have a complete illustration about this. If we only talks about this obtaining evidence rather than its credibility, this thesis will have little research value. This part will first introduce its credibility of English, America, and France in the purpose of getting a general idea about what is its credibility. Then, the writer will analyze credibility in our country. Because there are no clear rules about obtaining evidence in our legal system, the writer believes that we can use exclusive rules of existing law to judge the credibility of obtaining evidence by setting a trap. In the end of this part, the writer analyzes its adaptability from two aspects:one is that legal formulation of exclusive rules in our administrative lawsuit, and the other is that the adaptability and assessment of obtaining evidence by setting a trap.In the fourth part, it mainly analyzes obtaining evidence by setting a trap in administrative enforcement of law. This part will start from this kind of means itself and analyze its value and meaning, focusing on it theoretically. First, the writer analyzes its value from principle of administration by law and principle of proportionality. According to the writer, the principle of administration by law requires its law enforcement officials must abide by and carry out its administrative legal form. Everything in terms of administrative action must be based on this rule. And there is no permission for the usage of obtaining evidence by setting a trap in our administrative law. On contrary, many administrative laws have strictly made it clear for its procedure. From this point of view, we can see that it is illegal for the administrative law officials to use that means and this also against its rules. On the other hand, principle of proportionality requires the action of administrative organ must in accordance with the law and the purpose of setting the law. Its motivation must be reasonable. However, obtaining evidence by setting a trap has cheated on people to some extent, which may easily cause victims to use violence to against violence. This may gives rise to more severe social problems and apparently violates the original intention of administrative legislation. Besides, this kind of means also runs counter to the due process of law and the principle of human dignity. This part will talk about the negation of obtaining evidence by setting a trap theoretically, which is also the main point of this thesis.In the fifth part, it mainly talks about the legal regulation of obtaining evidence by setting a trap in administrative enforcement of law. Although there is no rules concerning about this kind of means, it is existed in our reality actually. So it is necessary for us to set regulations on this. This part will confine this kind of means from principle of legality and legal procedure and so on in the purpose of having an effect on this action in practice.This paper starts from introducing its basic theory and then analyzes its defects. The writer believes that only the administrative organ works strictly according to the law reasonably, properly, honestly, and efficiently can it improves its ability of enforcement. What's more, it can avoid the phenomena of abusing administrative power fundamentally if the administrative organ accepts supervision from society actively and not tied by interest and execute the law fairly at the same time.