Research On Opportunity Encouragement Investigation In Drug Trafficking Cases

In recent years,the number of drug-related crimes has been increasing.In 2017,procuratorial organ across the country prosecuted over 110,000 drug-related cases which involved 136,000 people.In addition,the situation of drug retail is worsening.According to the statistics,such crimes which are at the bottom of the crime chain as drug retail happen more frequently in recent years,especially those involving less than 10 grams of drug.In the mean time,the Article 153 of 2012 new section of Law of Criminal Procedure has definitely stipulated the legality of anonymous investigation while prohibited tempting people to commit crimes.As an effective means of fighting against drug crimes,the opportunity encouragement investigation has played the function of a “double-edged sword”.On the one hand,it is quite popular among the investigators of drug trafficking cases.On the other hand,due to imperfections of relevant rules and laws,it tends to be abused.Hence,research upon perfection of opportunity encouragement investigation has been an urgent problem to be solved both in theoretical and practical fields.It is also a practical subject that the front-line judicial staff should study upon.The paper is divided into four chapters to demonstrate and elaborate opportunity encouragement investigation in practice.Chapter one: The present situation and problems of opportunity encouragement investigation.In order to have a better understanding of opportunity encouragement investigation,it is necessary to define it clearly.The first part is divided into threesections.In the first section,the concept of opportunity encouragement investigation is defined by analyzing many concepts of encouragement investigation.Opportunity encouragement investigation means in the possession of certain clues and evidences,or fight against a target who has clear criminal intention,the investigation organs or their assistants adopt appropriate and reasonable seduction means,such as designing traps or providing opportunities,to urge the victims to complete their crimes and catch them on the spot,so as to achieve the purpose of criminal responsibility investigation.The second section studies from the aspects of textual interpretation,legislative purpose interpretation and reference to foreign laws and regulations according to section 153 "no induction of others to commit crimes".It is clear that no induction of others to commit a crime refers to the "intentional encouragement investigation",and the "opportunity encouragement investigation" studied in this paper is a necessary investigation means to adapt to the new situation of criminal crimes.In the third section,the author expounds the practical significance of studying opportunity encouragement investigation in the aspects of legal guidance,investigation practice and theoretical research.In the second part,in view of the existence of secret and victimless nature in drugs and other hidden transaction cases,the investigation organs are more inclined to use encouragement investigation means to solve cases.By taking two cases of atypical encouragement investigation as the lead,the author studies and analyzes the application and regulation of opportunity encouragement investigation in this paper to explore the existing problems of encouragement investigation: 1.Abuse of inductive rights;2.The judicial organs are reluctant to overturn the result easily.Chapter two: The study of the experience of countries outside the region.Three representative countries are selected: the American disguise investigation system,the German criminal inducement and regulations on the encouragement investigation in Japan.Based on the study of the relevant systems in the above countries,the author believes that the opportunity encouragement investigation studied in this paper is closer to the "accomplice induction" or the "buy-bust" shallow disguised investigation activities proposed by profess or Gary Max of the United States.In addition,theauthor thinks that the research on the legality standard of encouragement investigation in China can refer to the judgment standard of "entrapment defense" of the United States and take the form of "subjective standard" as the main and "objective standard" as the supplement combining our country's condition.And for the procedural sanction measures against encouragement investigation,the author is more in favor of Germany's "commutation" theory,which is mainly elaborated at the end of the fourth chapter.Chapter three: Sample analysis.The author tries to make a summary analysis of35 drug trafficking cases in the unit from January to June,2018,and a brief analysis of the application situation of encouragement investigation in drug trafficking cases of grassroots courts,and finds the following problems.1.Implement opportunistic investigation activities in practice with the legal procedures of "delivery under control";2.Both the accused and the defense lack the awareness of "entrapment defense";3.The court has little faith in the "inductive defense",and most of the commands are taken into consideration in the sentencing.At the same time,in this chapter,the author distinguishes the delivery under control from the encouragement investigation.The author believes that seduction investigation contains the means of "delivery under control".It can be said that delivery under control is an extension of encouragement investigation,which is a manifestation of encouragement investigation as well as the opportunity encouragement investigation studied in this paper.Chapter four: The exploration of legal problems of opportunity encouragement investigation.The first part mainly studies the subject of encouragement investigation.Nowadays,investigative organs tend to use temporary intelligence providers to carry out encouragement investigation activities,which leads to many problems in the management of inducing agents and leads to situations in which inducing agents or inducing perpetrators are entrapping crimes.Considering the particularity of the temporary intelligence provider,the author believes that the selection process should not be too strict,but the investigators must have their own judgment,not to rely on others to handle the case.Once the implementation subject crosses the line,theinvestigators shall immediately terminate the encouragement investigation.In the second part,the author studies the use of encouragement investigation evidence from three aspects: the testimony of special witnesses in court,the method of adding evidence and the exclusion of illegal evidence.1.The verification of evidence outside the court shall be made clear,and the verification of special witnesses outside the court may be initiated according to the application.At the same time,we can follow the example of foreign countries to protect special witnesses to testify in court with technical methods.2.Most of the drug-trafficking encouragement investigation cases are cases that have been initiated through "contact in advance" with definite time and place.Therefore,investigators should make full use of scientific and technological means to monitor the criminal process,so as to achieve the effectiveness of obtaining evidence and protecting the executors.3.In the process of using "illegal evidence exclusion",consideration should be given to the fact that the authenticity of the evidence obtained by undercover investigation,encouragement investigation and other secret investigation means is higher than that of general investigation means.Therefore,the evidence obtained through the above means should not be easily and completely denied.In the third part,the author suggests that there should be basic laws to regulate the principle of secret investigation including encouragement investigation.At the same time,it should regulate the content,steps as well as examination and approval of encouragement investigation through departmental regulations and local regulations.In the process of setting up laws and regulations,we can learn from other countries' experience,but it must accord with China's national conditions.In addition,in view of the randomness of encouragement investigation,relevant laws and regulations should not cover all the bases,but be formulated according to the operating habits of different regions and departments.In the fourth part,the author puts forward four concrete suggestions on the opportunity encouragement investigation.First of all,the examination and approval authority of opportunity encouragement investigation should still belong to the investigation organ.On the one hand,it can adopt the record system and be exercised by the inspection authority.On the other hand,it is the post-supervision of the judicial organ.Secondly,the inducing executors should be protected from several aspects: 1.Necessity review is needed for witnesses to testify in court;2.Improve relevant safeguards of the encouragement investigation system and give full play to the third-party supervision mechanism.Thirdly,strengthen the defense of encouragement investigation case.We should improve the theoretical research level of the defenders,strengthen their defense ability,find problems and raise them,and urge the judicial organs to pay attention to the case of "encouragement investigation",thus promote the rule of law of "encouragement investigation".Fourthly,in terms of the external supervision of the trial,the author proposes to give priority to sentencing relief and allow the use of "illegal evidence exclusion" and "termination of litigation" in special circumstances.