The Procedural Regulations For Technical I Nvestigation

The key point to the improvement of our technical investigation relies on the procedure. The technical investigation under the rule of procedure can be defined as having (i) a general concept, which is being regulated by the dynamic balance between safeguarding human rights and control of the crime; (ii) a procedure for examination and approval, which is being regulated by the concept of effective control; (iii) a region, scope and category, which is being regulated by the concept of reasonable protection of the right of privacy; (iv) a term, which is being regulated by the principle of necessity and appropriateness; (v) a procedural punishment, which is being regulated by the concept of power control.Despite the differences between Continental Law System and the Anglo-American Law System, the States of laws have all made stringent regulations on a number of aspects of technical investigation, which is the scope of application, procedure for examination and approval, time, venue, term, the use of evidence, right to enjoy relief for the party concerned, etc. The problems in our technical investigation are that (i) its examination and approval provisions are too ambiguous; (ii) unclear with respect to the scope of application and category; (iii) too broad for its term of application; (iv) no stipulation on the venue of application and unavailability for procedural punishment will very likely result in black box operation, thus may infringe the constitutional rights of citizens.As far as current National conditions and judicial system of our country are concerned, it is relatively more appropriate to let procuratorate organ, a legal supervision organ, to examine and approve the technical investigation measures. The main content to be approved is whether it is necessary to carry out technical investigation and on what ground? The procuratorate organ should reply in written form once it intends to approve the request made by the investigation organ. As for the term of technical investigation, rather than uniformly set 3 months, actual conditions when performing the technical investigation measures should be taken into consideration. The term for technical investigation can be extended upon expiration in case it is still necessary to take technical investigation measures continuously. The time of extension should be explicitly stipulated, and for which, it is appropriate to have a maximum of 2 times of extension. The scope of application for technical investigation should be unified with the statutory sentence, and for which, the 3-year’s imprisonment (probation is excluded) should be regarded as the standard for a serious violation of legal interests, in anther word, technical investigation shall be applied to an important or emergent case, for which, the party concerned maybe sentenced to more than 3-year’s imprisonment. When it comes to the category of technical investigation, not only should we specify the category and measures of technical investigation suitable for the specific crime category, case details and conditions of the suspects. Moreover, we should consider the hysteretic nature of laws and prepare some technical investigation measures that can be applied in the future. The country should make stipulations concerning the venue on which the investigation is carried out. For example, it should be prohibited to carry out any unauthorized technical investigation in a suspect’s residence. By limiting the venue of investigation, it can prevent the abuse of technical investigation power, thus it can safeguard the human rights in a better way. In case the lawful rights and interests, such as the right of privacy enjoyed by a citizen, is infringed due to taking technical investigation measures illegally, the victim should be allowed to receive relief in accordance with the law. Except for the examination and approval procedure and the implementation procedure, some punishment procedures have to be set as well, which means that if the investigation organ has not taken technical investigation measures in accordance with the stipulation, it must assume certain liabilities and consequences, i.e. stop or withdraw the lawsuit, invalidate the lawsuit, exclude the illegal evidence or reduce punishment.