Discussion On Police Encouragement And Its Legal Regulations

Discussion on Police Encouragement and Its Legal RegulationsPolice encouragement is a special investigation way and measure of criminal offence investigation, but it has been hotly debated all the time on existence of its legality. As a special investigation way, police encouragement universally exists and plays an important role in the real criminal investigation practice. No matter the civil law countries severely emphasizing on cracking down on the crime and advocating national public power, or Anglo-American law system countries emphasizing on the protection of human rights and advocating due process, a relatively broad claims are taken by both of them to the police encouragement. Since the innate fraudulence, nature of temptation, and even a certain unlawfulness of means of police encouragement, which makes the legitimacy issue on application of means of police encouragement had been always the focus of heated debates by jurisprudence community. In fact, police encouragement is both a blessing and a curse, which can be of either the rationality, necessity for its existing or causing a certain illegality, and even with a considerable degree of hazards, it will cause the overflow of public power, destroy authority of the judicial organs, do harm to fairness of criminal justice, and get state organs into the suspicion of making crimes if not controlled properly, thereby leads to a series of unforeseeable social problems and contradictions. It is necessary in actual judicial practices for bringing police encouragement into the orbit of legalization and making legal regulations. Giving full play to the positive effect of means of police encouragement, which is in favor of fighting criminals especially the crimes with vague victims, maintaining social normal orders and protecting the legal rights and interests of citizens. As a kind of investigation crimes with concealment and great and complex crime, it has been proved that the police encouragement is an effective investigation mean and has been recognized by most of countries. However, it hasn't been given enough legality by legislation of every country based on the legality, initiative and responsibility of right of investigation. Once this mean is abused, police entrapment or police trap will be composed, which runs counter to the fundamental purpose of Criminal Law and criminal penalty as well as the human ethics, without legitimacy.In this paper, discussion on aspects of the comparative analysis on between police encouragement of the model of enticement of criminal intent and the model of chance offering, legitimacy issue on police encouragement and legal regulations of police encouragement etc. is made from the creation origin and concept of police encouragement, so as to make discussion to the rationality and necessity of bringing police encouragement into the orbit of laws of our country, and lay a foundation for legislative studies on this issue for China in the future. Though police encouragement system in current legislation of China hasn't been stipulated clearly, the increasingly prominent contradiction among a vast of proliferation new form and mean of crime and relatively backward investigative technique, lacking judicial resources, and unpromising social security situation decides the rationality and necessity of means of police encouragement in current investigation practices. It is not only the urgent request for fighting criminals at present, but also the objective need to protect citizens'rights from unlawful infringement to actively promote it to legalization and bring it into the orbit of legalization aiming at the reality of means of police encouragement have already been used for police encouragement practices by investigation organs.In this paper, police encouragement is mainly analyzed and discussed by being classified into two types of the model of enticement of criminal intent and the model of chance offering. For the model of enticement of criminal intent, it should be steadfastly excluded since its unlawfulness; while the model of chance offering, conditions of its acceptability should be stipulated, and which should advocate to be confirmed in legislation so as to make it obtained related legal ground in deed and served for actual judicial practices. Police encouragement is of its application in judicial practices of our country at present, as long as performed in accordance with laws within a certain limitation, without prejudice to principles of Constitution of the People's Republic of China and Law of Criminal Procedure, can the legal framework of its legality shall be constructed on discussion. Although it should be taken serious consideration to bring means of police encouragement, it is necessary for making all-around analysis within legal system and social reflection outside the system. How to make necessary legal regulations on police encouragement, which is in relation to reasonable and lawful application of means of police encouragement, meanwhile is related with fair and proper implementation of Law of Criminal Procedure. Therefore, legislations on police encouragement must be improved, which in order to protected against its unlawfulness in practices and eliminate its disadvantages on one hand; on the other hand, enlarge its positive effect so as to adjust to the needs of actual investigation practices and effectively fighting criminals.