On The Legal Regulation Of Technical Investigation Measures In China

As a kind of efficient and convenient secret investigative measure,technical investigation has a long history in the judicial practice in our country.There has long existed a large number of phenomena that indicate that the investigation of criminal cases is dependent on the measure of technical investigation.However,China's legal regulation of technical investigation measures started up relatively late,and the relevant legislation remains to be improved.In the judicial practice,the imperfection of the law in the technical investigation measures leaves a great deal of discretionto the hands of investigation institutions,which makes the citizen' s right of privacy and other basic rights have long been at the risk of beinginfringed.Having consulted some other relevant legislative experience of developed countries and combined with China's specific conditions,the author carried on a comprehensive analysis,in an attempt to explore a legal regulation system for the technical investigation measures with Chinese characteristics.The following problems are main problems that existed in the legal regulation of china's technical investigation measures:the first one is the lack of procedural rules in legal dimensions.Injudicial practice,the criminal investigation department often makes its own normative documents to govern,which extremely lead to the great risks of arbitrary application of the investigation agency.The second one is the wide' term of application time limit,China's criminal procedure Law only stipulates that the technical investigation measures in one time was limited in three months and it can be deferred according to the actual needs,but it didn ' t give a clear time limit about the longest application.The third one is the blurred scope and object of the applicable case,there are many terms such as "the other crime cases which seriously damage to the society"in China's criminal procedure Law,which makes it easy for investigation department to expand the explanation widely.The fourth one is the lack of effective external supervision and sanction measures,it makes investigation agency wander outside the framework of law supervision in carrying out technical investigation measures,which will cause the misuse of technical investigation measures inevitably.The fifth one is the lack of legislation on the civil right of relief,there is no effective remedy way in the law when citizens meet the right infringement caused by the illegal use of technical investigation measures by the investigation agency.The sixth one is the existing major hidden danger in right distribution,the power holders of technical investigation measures are too complicated,which will lead to be difficult to supervise in practice.According to the author,the following aspects can be tried to strengthen the legal regulating of the technical investigation measures in our country.One is to adjust the subject of the implementation of technical investigation measures,and to concentrate the right of the implementation of technical investigation measures on state security institution.The second measure is to clarify the scope of the application of technical investigation measures,within which and under the premise of listing out which type a specific case can be applied to,meanwhile,within the scope of suitable objects,a specific legal sentence should be regulated and the suitable objects of those technical investigation measuresshould be strictly confined to the criminal suspect and criminal suspect ' s helpers.The third one is to set up a strict examination and approval procedure,and give the right of the examination and approval of technical investigation measures over the procuratorial institutions.The fourth one is to formulate a maximum period of application.Generally,it shall not exceed six months.And under special circumstances,it shall not exceed one year.The fifth one is to establish and improve measures of relief and sanctions in order to protect the investigation objects ' right to information and their claim for compensation.