On The Legal Regulation Of Technical Investigation Measures Of China

In2012, the Criminal Procedure Law added a new section for technicalinvestigation measures, which caused huge response of the legal theoretical cycle.Some scholars approved that act, while some opposed. Anyhow the technicalinvestigation will inevitably become legal investigation measure. Most of the prosthink that it is better for the technical investigation to legally confirm than to beacquiesced because this legal confirmation is also the inevitable requirement of acountry under the rule of law. As for the opponents, they mainly worry that technicalinvestigation measures will be abused and thus infringe the rights of citizens.However, under the background of continuously strengthening human rightsprotection, the improvement of legislation in Chinese technical investigation isimperative in order to legally and effectively crack down on crime, which is also thedirect cause of the topic selection.The legislation of the concept of technical investigation is not clear enough, thuscausing confusion and bringing great obstacles to its application in later practices.The situation causing the confusion in definition of technical investigation should becorrected. To solve this problem, China should enact laws to make clear the definitionof the concept of technical investigation measure, thus distinguishing the technicalinvestigation from undercover investigation and temptation investigation and otherinvestigation methods and classifying them as secret investigation. The fuzziness ofthe application scope of technical investigation is mainly manifested in two aspects.The first is the unclear scope of charges. In China, there are no classifications of thetechnical investigations aims at different crimes and the provisions of the applicationof technical investigation in specific cases are not very clear. The paper proposes tocombine the charges listing with sentence to determine the applicable scope, applyingdifferent technical investigation measures according to the characteristics of thecriminal offense, the hazard rating of crime, and the cost to save a case. The second isthe fuzziness of the applicable targets. The relevant Chinese law only simply lists theapplicable charges of technical investigation without specific applicable methods. Therefore, the Chinese law should make clear that the implementation of technicalinvestigation should be people oriented, and should enforce restriction on theapplication for “people”.As for the approval process for technical investigation, the author advocatesstrict regulations. There are mainly three models adopted by the countries around theworld to solve the fuzzy legal rules of the approval process for technical investigationlaw, namely judge authorization, procurator authorization, administrativeauthorization. The current Chinese technical investigation adopts the administrativeauthorization mode. The first reason is that the Chinese court has not obtained judicialindependence with strong administrative interference. Then, in China, if theinvestigation of the judge interfering the case in advance will to a extent weaken theneutrality of the final judgment of, the case. Thus, the author thinks that the relativelyfeasible reform plan in China should be giving the examination and approvalauthority of technical investigation to the procuratorial organ. The current executivemain body of the technical investigation in China is the public security organ, and thecases investigated by the procuratorial organs also are executed by the public securityorgans. However, this kind of method has quite obvious disadvantage. The authorthinks that the legal authorization of giving the executive authority of technicalinvestigation to the procurators can help better fight crime.For the reason of human rights protection, the implementation period should bestrictly restricted, the rules of extending the period should be strictly limited, and theexecution process should be under strict supervision. The author proposes that: firstlymake clear the role of the procuratorial organ in supervision, then make procuratorialorgans take responsible for the supervision of the entire process of technicalinvestigation, and finally transfer all materials collected through technicalinvestigation to the procuratorial organs for review. The worst violations of technicalinvestigation for the rights of citizens are no other than privacy invasion. There aretwo main ways to protect the privacy protection of the suspect: one is to limit theapplicable scope of the information collected through technical investigation. Secondis to give the criminal suspect the right to use the information collected by technicalinvestigation. To strengthen the storage of the information of technical investigation, it is necessary to give the procuratorial organs the decision-making power and thesupervision right of taking responsible for storing the information collected throughtechnical investigation. As for the guarantee of other rights of the criminal suspect, itis necessary to firstly give the criminal suspect the right to information and the rightto dissent, and then give right to claim indemnity for illegal technical investigation,and finally establish the sanctions mechanism for illegal technical investigation. Theauthor thinks that there are two main aspects: one is to establish substantive sanctionsmechanism for illegal technical investigation and the second is to set up proceduralsanctions mechanism for illegal technical investigation. To achieve these two aspects,there are two methods. In the long run, the system of the void of court action shouldbe established and in the short term it is feasible to establish the exclusion rules of theillegal evidences collected through technical investigation.