Research On Consent Search And Its Construction In China

Consent search as a unique criminal coercive measure, with its existent rationality, but it also likely infringe the civil constitutional rights. Therefore, it became a very important subject in academic research in most countries in the world and area, that how to take full advantage of the superiority of consent search and avoid the abuse of power at the same time. But there are no relevant provisions about consent search in Chinese law and the theory research also has not yet fully extended. Therefore, this article attempts to begin with the basic concept of consent search, discussion the basic theory of consent search,introduce the consent search in major country of continental law system and the theory of consent search in United States case law as foreign laws investigate, and analyze the essential condition of consent search. On that basis, further analyze the possibility and necessity of China introducing the consent search, then provides some plans concerning rudimentary constructions of consent search systems in China.The main part of this article is about 20,000 words in total. Except for the conclusion, the text can be divided into four parts:The first part's topic is the summary of consent search systems. This part tries to answer the following questions:What is the consent search? What is the basic theory of it? And what is the significance of it? This part is made of three sections:Firstly, we are going to define the consent search and its two types. Secondly, discussion the theory basic of consent search, it included:"the theory of rights abandon", "the theory of void of reasonable privacy expectations", and "the theory of rationality". Thirdly, analyze the existent rationality and regulating requirements of consent search.The second part's topic is the foreign laws investigate about consent search.By introduce the consent search in major country of continental law system and three classic cases about consent search judgment by the Supreme Court of the United States:Schneckloth v. Bustamonte, United States v. Drayton, Georgia v. Randolph. Based on the first and second part of this text, review the issue and decision of these three cases respectively. Attempts to card the theory of consent search in United States case law. The third part's topic is the analyze of essential condition of consent search. The section one of this part is to analyze the substantive essentials of consent search, it included:the main elements and the subjective elements. The section two of this part is to analyze the procedural essentials of consent search, it included:the obligation to inform of law enforcer, the scope and revocable of consent search. The section three of this part is to discussion the legal consequences of illegal consent search, it included:post judicial review, the consequences of substantive law and exclusionary rule of illegally obtained evidence.The fourth part's topic is about the constructions of consent search systems in China. By analyzing the practical problem and compatibility, demonstration the possibility and necessity of China introducing the consent search, then provides some plans concerning rudimentary constructions of consent search systems in China.