Judicial Review Of Technical Investigation

Technical investigation is based on modern technology and supported by information technology,electronic science and technology,Internet technology and other means of investigation,mainly covering electronic monitoring and monitoring,electronic tracking,secret recording secrets,communication interception and so on.With the advancement of science and technology,high-tech,artificial intelligence and other high-tech are widely used in investigation activities,and the connotation and extension of technology investigation are continuously enriched and developed.Technical investigations are highly efficient,concealed,and result infringement.Most major countries and regions in the world have carried out targeted legal regulation on technical investigations.The current practice is mainly to conduct judicial review of technical investigations.In criminal proceedings,judicial review refers to the judicial organ or the litigation activities based on the application of the investigating organ or on the initiative to conduct compulsory investigations to be taken by the investigating organ in accordance with the law and to decide whether to approve or implement it.The reason why technical investigations are included in the scope of judicial review is mainly because technical investigations often involve the most basic rights of citizens under the Constitution to survive and develop.At present,major countries and regions have adopted judicial review of technical investigations.Through investigations,it is known that the United States adopts double-examination standards for electronic surveillance,adopts judicial review system for monitoring,and acquires electronic storage information and monitors equipment.Judicial review is adopted,and judicial review is also carried out when secret searches and mail inspections constitute a search for “reasonable expectation of privacy”.The UK adopted an administrative approval model for interception of communications,but set up more comprehensive rights protection measures.France,Italy and other countries have provided for judicial review of technical investigations in the legislation,as well as exceptions in emergency situations to adapt to the need for technical investigations in emergencies.Japan distinguishes between compulsory technical investigation and arbitrary technical investigation,implements judicial review mode for compulsory technical investigation measures,and implements internal approval mode for arbitrary technical investigation.As far as China’s technical investigation judicial review system is concerned,China has not adopted a judicial review mechanism for technical investigation,but adopted an administrative examination and approval model.From the National Security Law of 1993,the People’s Police Law of 1995 to the current Criminal Procedure Law and the Criminal Procedure Regulations.Under the current conditions,the administrative examination and approval model can basically meet the needs of China’s adoption of technical investigation measures,but its defects are also prominent,that is,there is still a big gap between the current concept of building a country under the rule of law and the requirement to protect human rights.In the legislation,China’s current technology investigation and approval system mainly has the following problems: the principle of legislation and generality,the applicability is not strong;the lack of technical investigation measures in the legislation and the approval procedures in emergency situations;There is no approval procedure for network technology investigation measures.In practice,the following problems also exist: administrative examination and approval leads to the supervision of the same body,the examination and approval is not strict,and the issue of approval easing is serious.In the process of application,the types of arbitrarily changing measures and the objects of application are prominent.There are many reasons for the problems in the judicial review system of technology investigation in China.In the legislation,the main performance is: under the influence of "reconnaissance centralism",the judge’s status is not high,lacking the proper authority,the overall lack of judicial review system construction in China’s criminal litigation;insufficient understanding of scientific legislation,legislative technology backward Inadequate reference to advanced and mature legislative experience,lack of digestion and absorption;legislation has not kept pace with the times,and has not fully synchronized with the practice of investigation.In practice,the main manifestations are: the legal awareness of the approving personnel is not strong,the sense of responsibility is not strong;the case-handling personnel lack procedural awareness,and the concept of human rights protection is not strong.In today’s society,judicial power is often used as the most powerful means of balancing state power and guaranteeing citizens’ legitimate rights.When state powers impose compulsory sanctions on citizens’ private rights,they must be reviewed by due process by the courts,and finally decided and implemented..Therefore,based on the consideration of improving the level of legalization in China and the integration of international criminal law,China should also establish a judicial review mechanism for technical investigation.At present,China is carrying out reform of the judicial system,and the proposal of governing the country according to law and governing the country according to the constitution makes it possible to construct a judicial review mechanism for technical investigation.When constructing the system for judicial investigation of technical investigation,we must not blindly copy it.We must base ourselves on China’s national conditions and take the path of combining local reform with system construction.In accordance with the degree of violation of civil rights by technical investigation measures,technical investigation measures shall be distinguished.If the degree of infringement is serious,the procuratorial organ shall examine and approve the case.If the degree of infringement is normal,it shall still be examined and approved by the person in charge of the public security organ at or above the municipal level.In addition,emergency authorization and temporary authorization procedures should be designed in the design of the approval process.However,the judicial review system for constructing technology investigation is a systematic project.It must be top-level design,coordinated and unified by the state,and implemented step by step.The system construction involves many aspects of China’s economy,politics,culture,etc.Top-level design and unified coordination at the national level are difficult to succeed.