On The Legal Regulation Of The Undercover Investigation In China

The criminal patterns in the world have become increasingly complicated and organized crime is increasingly rampant since the 20 th century.The most salient features of these crimes are organized,concealed and intelligent,and usually no victims reported.The traditional method of investigation is a "response-type" investigation.It starts after the incident and lacks initiative.It is ineffective to deal with complicated organized crime.Faced with this challenge,all countries around the world have generally introduced the undercover investigation.Because of the advantages of "knowing yourself and your enemy," the undercover investigation have achieved remarkable results in dealing with organized crime.Therefore,most countries have given a legal status to the undercover investigation.However,there is a huge value conflict behind the undercover investigation,which has led to the controversy over it all the time.Although the undercover investigation can effectively fight crimes and realize the substantive justice,because of the confidentiality of the means of investigation,the suspects and third party's rights,such as the right to know,privacy and freedom of communication will be violated in the investigation.In addition,the means of deception used by the undercover police officers may also damage judicial integrity and cause public mistrust to the judiciary.China has affirmed the legal status of the undercover investigation,but the supporting system for its implementation has not been established,which easily leads to abuse of the investigation power and infringe upon the basic human rights of citizens.As Montesquieu put it,"It is an everlasting experience that all people who have power abuse power,and those who have power don't stop until it reaches the boundary." So we must make strict legal regulations on the undercover investigation in order to balance the value conflicts and achieve the dual objectives of maintaining social stability and protecting human rights.Details as follows: The undercover investigation can only be applied to serious organized crimes,such as smuggling crimes,narcotics crimes and triad crimes.And the undercover investigation can only be used as the last resort in the condition of exhaustion of other conventional means of investigation according to the precise clues.First,the implementation of the undercover investigation requires to select outstanding police and need to experience special training.Then the undercover police submit application for the undercover mission by themselves and approved by the principal of the public security organ at or above the county level.The relevant circumstances of the undercover investigation need to return to the procuratorial organ for the record,so that the procuratorial organ can exercise the power of supervision.The evidence obtained by the undercover investigation has the evidence qualification.The testimony can generally be given through interrogation and transcript before the court,and the undercover police may also testify in court if necessary.Illegal acts committed by the undercover police should take responsibility in the process of undercover investigation except for those acts within the range of authorization for the purpose of the investigation missions.If their acts infringe upon the legitimate rights and interests of the third party,the unit they belong to or themselves also need to be liable for compensation according to the different situation.The identity of the undercover police must be kept confidential whether in the mission or after the mission.After the undercover mission is completed,it is necessary to resume the identity and treatment of the undercover police as well as psychological counseling to ensure they return to normal life as soon as possible.