Conflict And Balance Between The Technical Investigation And Privacy Protection

Technical investigation conflicts with the citizen’s privacy inevitably, because the characteristic of technical investigation is highly secret and mandatory, however privacy emphasis that peace of individual activity and personal space are inviolable. With constantly emerging of the new technical investigation measures and the growth of the awareness of privacy, this conflict has become increasingly fierce. Have a conflict must have balance, for protecting human rights and balancing technical investigation with privacy protection, many countries under the rule of law put the technical investigation into the system of legal norms and established the system of technical investigation. Our country preliminarily established technical investigation system in 2012, it was the preliminary exploration of balancing technical investigation with privacy protection and promoted technical investigation under the rule of law.But compared with system of technical investigation in western countries, there are many shortcomings and places needed to be improved in our country’s system of technical investigation. Making a real balance between technical investigation and privacy protection is far from over. As to the shortcoming about the system of technical investigation in our country’s criminal procedure law, the thesis will clarify two methods about how to balance technical investigation and privacy protection, what’s more, the author will make suggestions about how to perfect our country’s system of technical investigation based on these two methods. The thesis has four parts to discuss:The first part introduces the universality and particularity of technical investigation and right of privacy. Firstly, for comprehensively understanding of the specific content of technical investigation and privacy, the author introduces respectively the universality and particularity of technical investigation and privacy protection. Then the author explains the internal connection between the particularity of the technical investigation and the particularity of the privacy.The second part analyzes the conflict between technical investigation and privacy protection. Firstly, the author clarifies main characteristics of the conflict between technical investigation and privacy protection:one is that the conflict is inevitable; the other is that the conflict is not equal. Then the author states the influence that technical investigation conflicts with the citizen’s privacy, it includes the privacy about personal peaceful life and the privacy about personal secret information.The third part discusses the balance between technical investigation and privacy protection. As to the inevitable conflict mentioned in the previous part, we make a point that the contradiction can be reconciled. The realistic method of achieving the balance between technology investigation and privacy protection is that government limit the application of the technical investigation to the framework of the legal procedures and establish the system of technical investigation. Then by comparing American and German’s valuable experience on establishing the system of technical investigation, the author put forward two paths of achieving the balance between technical investigation and privacy protection:one is about the classification of technical investigation; the other is setting up the concept of due process.The forth part gives some suggestions on perfecting the system of technical investigation in our country. There are two aspects in my suggestions:one is building multiple stratification system of technical investigation based on the classification of technical investigation. Different types of technical investigation satisfies different standard of rule of law, the system of technical investigation can be divided into three layers. The other is building the system of technical investigation based on the concept of due process. There are three aspects in this suggestion:perfecting the program control provisions on the technical investigation; progressively reforming the mechanism of judicial review on technical investigation; establishing illegal sanctions regime and the right relief mechanism from two aspects of procedure and entity.