Intervention In Investigation Of The Basic Human Rights

This article begins with the conception of undercover investigation, infiltration and sting. Infiltration refers to the investigation conducted by an undercover agent, who disguises his identity for a long time and has special authority, while sting describes the way of investigation through facilitating or even encouraging crimes. A new conception named proactive investigation is lately considered to have a close relationship with undercover investigation. However, when one takes a close look at the practices in this field in Germany, he can discover that several misunderstandings were laid onto the definition of proactive investigation. For example, some scholars ignore the differences between so-called Vorermittlung and Vorfeldermittlung, and pay little attention to the limits on proactive investigation.After that, the article focuses on the intervention of undercover investigation into people’s fundamental rights on the basis of the theories and practices of Germany. Dignity and rights of human beings form the foundation of the state of law and produce the fundamental rights of people. Judicial review about whether or not an administrative act intervenes in these fundamental rights consists of3steps:firstly make sure whether a fundamental right exists and is involved in the present case; then, whether there is an infringement on such right; at last whether such intervention is constitutionally justified. Undercover investigation may intervene in the right of property, the right of privacy, the right of a fair trial and so on. But it is still acceptable when the requirements of the principle of reservation of law and of proportionality are fulfilled. The principle of reservation of law consists of two parts, horizontal structure and vertical structure, and is closely related to the principle of certainty. The principle of proportionality demands that an act be appropriate to achieve a legitimate objective, that it be necessary to achieve the objective and that the advantages brought by the object outweigh the disadvantages imposed upon the people. The practice of undercover investigation in Germany can meet the requirements of the principle of reservation of law and of proportionality.In the last part of the article, the author turns to the legislation and practices of undercover investigation in China. Through comparison between China and Germany, the author points out the problems in the new Criminal Procedural Law of China.