On Criminal Physical Examination System

Criminal physical examination is a sort of activity, which the investigation organ obtains and preserves crime evidence through examining the physical property, physical condition and physical character of the defendant(including the suspect) and the third person’s body to reach to the truth of the case in the process of criminal lawsuit. The thesis is mainly composed of four parts.The first chapter is stretched around the definition and the legal attribute of criminal physical examination, introducing the conflicts between the physical examination and basic human rights like right of personal liberty, right of body, right of privacy. Clarifying the dual nature(arbitrary investigation and compulsory investigation) of the criminal physical examination. Analyzing the relation and distinction between the physical examination and the personal sampling, the personal search and identification, and at the same time, introducing the means of classifying the physical examination.The second chapter focuses on the legitimacy foundation of the physical examination, that is, from three basic principles, law reservation principle, proportion principle and the principle of judicial review to be carried out. Under law reservation principle, emphatically discussed the clarity of the physical examination authorization, and the physical examination of prohibited analogy, the scope of authorization and the supplementary interventions of the physical examination. During the process of the introduction, the article also reviews the current law and judicial practice in China.The third chapter introduces the threshold doctrines and the rules of implementation of the physical examination. First, the start of the physical examination should meet the suspected threshold, correlative factor and the entity of the health requirements. Second, the application need obtains the authorization of the judge, that is, need meet the requirements of relative principle of the judge reserved. Third, in the implementation specification, should meet the physicians perform rules, same-sex inspect regulation, as well as to check the use of materials and destroy rule constraints. At the same time, in view of the third person’s physical examination also should follow the principle of the witness, the principle of trace and special provisions, which limit the scope of inspection to the third person and interventions can be taken.The fourth chapter is mainly relative to the flaw of the current practice of the criminal physical examination in our country, including general authorization, which essentially violates the law reservation principle. Lack of corresponding constraints on the mandatory examination of the defendant while there is possibility of the abuse of the physical examination’s compulsory right since it is lack of limitation of the power of the inspector. At the same time, the scope of physical examination to the third person is not limited to the victim, also including the witness. Besides, the article also demonstrate the possibility of the mandatory examination on the third person and deny the general theory through the theory of balance of the purpose of criminal litigation, the judge’s duty of finding truth and the defendant’s execution of the right of denfence.The conclusion is the expectation of the reform of the physical examination in China on the basis of the four chapters above.