The Theory Of Compulsive Sampling Of Criminal Lawsuit

With modern science and technology is widely used in criminal proceedings, compulsive sampling has gradually become the tool of investigation organ determine the case facts. In main countries and regions of the world, compulsive sampling is generally positioned as compulsory investigation measures, given the compulsive sampling is a highly intervention citizen’s body, the right of privacy, the right to health detection measures, in the exercise of compulsive sampling measures, not only pay attention to the purpose of mandatory sampling on crime, and pay more attention to human rights being sampled, such protection is through the concept of due process of law and a series of system to be regulated, such as judicial review system, illegal evidence exclusion rule, the principle of proportion, etc. In this paper, based on the investigation to the outside of the rule of law country, summarizes its compulsive sampling idea worthy of learning and system; Sampling enforcement in our country, concrete analysis its existence insufficiency, points out the necessity and feasibility of perfecting compulsory sampling, on the basis of tentatively puts forward the reasonable improvement suggestion.This article is divided into four parts, about thirty thousand words.The first part is about basic theory of criminal lawsuit compulsory sampling of elaboration and analysis. Through to the domestic scholars compulsive sampling comparison and analysis of the concept of criminal procedure and the criminal litigation compulsory sampling with personal check, personal search, distinguish between judicial authentication and other related concepts, as well as the legal nature of compulsive sampling are compared in this paper, the theory, points out the criminal lawsuit of our country compulsive sampling is an investigator to collect evidence, to find out details of a case, the criminal suspect or the victim, a witness to an in vivo or in vitro sample compulsory investigation measures.The second part is comparison of criminal lawsuit compulsory sampling inspection, the main investigation of the United States, Britain, Germany, Japan criminal litigation legislation and practice of sampling. Through investigation found that outside the country under the rule of law criminal proceedings compulsory sampling on the authorized basis, generally follow the principle of law reserve; On the startup review, commonly practiced writ principle; On the implementation of the requirements, generally embodies the principle of proportion; On the remedy mechanism, common right remedy mechanism is established. Therefore, outside the country under the rule of law criminal proceedings compulsory sample message is on the guidance idea, crime control and human rights protection should be considered the dual goal of; Sampling on power operation mode, to achieve forced the decision and enforcement of moderate separation;On the remedy mechanism, to perfect the related system.The third part is our country criminal lawsuit compulsory sampling legislation present situation and existing problems. Criminal procedure law revised in2012, forced to have a clear legislative provisions of the sampling. But its provisions are too general, lack of maneuverability, so led to a criminal action force sampling some of the problems in the judicial practice. The first is the condition of fuzzy; The second is the program has no neutral authority intervention; The third is forcing the implementation of the sampling objects are not clear;The fourth is not necessary classification for compulsive sampling of samples; The fifth is the enforcement procedure is not standard; The sixth is the lack of human rights being sampled.The fourth part is compulsive sampling in criminal procedure law in our country is perfect, respectively from perfecting criminal proceedings compulsory sampling illustrated the necessity, feasibility and concrete train of thought. Criminal proceedings compulsory sampling factors are:The necessity of perfecting compulsory sampling measures investigation procedure required under rule of law; Perfect is the concept of human rights protection measures of compulsory sampling requirements; Perfect compulsory sampling measures is an inevitable trend in the legislation of the motors. The feasibility of criminal proceedings compulsory sampling factors are:The concept of due process of law studies have advanced, provide theoretical support for the perfection of the compulsive sampling; The awakening of consciousness of civil rights, for the perfection of the compulsive sampling provides social foundation; Practice department actively explore, for the perfection of the compulsive sampling provides practice basis.