Collecting Samples Against Will Research Under The Vision Of Human Rights Protection

Collecting samples against will is widely used in national judicial practice as an effectiveinvestigative action, however，it is a double-edged sword. It could bring tremendous valuefor investigating cases, on the other hand, it brings infringements to the citizens’fundamental rights inevitably.The countries and regions with developed legal systems wereaware of those, they adopted legislative approach to regulate it. But in China, it still lacks oflegal basis seriously. There are tremendous gaps between legislation and practice in thispoint, which causes many problems in actual operation process. In order to solve the existingproblems, some experts strongly appeal to set up a series law on it. Based on the existingresearch, the papers aim at making a further study and attracting more people’s attention onthe involved issues. This article is divided into four parts:The first chapter is to expose the basic theories on colleting samples against will. Generallywe are so confused on relationships between collecting samples against will and examinationof the person, searches of the person, judicial expert evaluation, that it is necessary todefinite basic concepts and clarify the relationship between them for grasping the discussedtopic accurately. The significance of classification is we could make different rules fordifferent types of collecting samples against will. It benefits practice of investigation,bringing a fierce conflict with the citizen’s personal liberty right, body right and privacy rightat the same time.The second chapter is to investigate the collecting samples against will in foreign countriesor region. This paper lists the laws on collecting samples against will in Germany, Japan,Taiwan, United Kingdom and United States, analyzes the similarities and difference of thesecountries situation and provides a reference for our country’s construction.The third chapter is on the survey to China’s legislation and practice. As an effectiveinvestigative action, collecting samples against will is widely used in China’s judicialpractice. But, the implementation of it leads to a series problems for various reasons. Thispaper summarizes these problems as arbitrary application, lacking of necessary monitoringmechanisms and effective relief channels on the operation process. To solve those problems,this paper not only lists some reasons responsible for it, including legislative vacancy and thethoughts of paying more attention to punishment of crime and less attention to the protectionof human right, but also point out it is related to our whole investigation procedure lacked ofinstitutionalized. To some certain extent, lack of the awareness of self-rights protection contributes to the abuse of rights.The fourth chapter is to build our country’s laws of collecting samples against will. Manyexperts and scholars have put forward their own suggestions and comments on construction,but these suggestions and comments are still unreasonable. Based on the existing views, thispaper put forward some immature views on the scope, approval, the application ofsubstantive requirements and enforcement procedures, as well as the proof ability of theevidences obtained by collecting samples against will.