| The reform of "trial-centered" criminal procedure system highlights the centrality of the trial,and requires the standardized collection of evidence by strengthening the supervision and guidance of the collection of evidence by the investigation organs,so as to ensure that the evidence obtained by the investigation organs can stand the test of law.As an important investigation and evidence collection measure,criminal seizure and detainment will be one of the important contents of this reform.The establishment of the system of criminal seizure and detainment in China has gone through a long period of exploration.The first criminal procedure law issued in 1979 endowed the legal status of detainment as an investigation measure,and the system of criminal detainment was initially established.After the criminal prosecution law was revised in 1996,the criminal detainment system led by the procuratorate and the public security organ has basically taken shape.In 2012,the criminal procedure law was amended for the second time,and seizure was officially written into the law,and the objects of criminal seizure and detainment changed from “articles and documents” to “financial and documents”,the property attribute of sealed and distrainer is self-evidence,at the same time,electronic data is also officially included in the scope of sealing up and detaining objects,all these changes highlight the interference of criminal seizure and detainment on citizens' property rights and privacy rights.Under the value guidance of "protecting human rights",the criminal litigation law gives the parties and interested parties the right to appeal and Sue,making up for the shortage of right relief.After the third amendment to the criminal procedure law of 2018,the system has entered a period of relative stability.A complete system has been formed,from initiation and execution to property preservation and right relief.Legislation level system design has been perfect,but the feedback from the judicial practice,criminal seizure and detainment system operation has many problems: first of all,the decision-making power of criminal seizure and detainment is in the hands of the investigation organs.This mode of integrated decision and execution leads to many problems such as low initiation standard of seizure and detainment;Secondly,in the execution stage,the relevantprovisions on the scope of objects subject to criminal seizure and detainment are too general,and do not indicate whether there are property or documents that cannot be seized.The witness system is not implemented and the use of the list of seizure and detainment is not standardized;thirdly,the current domestic storage mode of sealing up and impounding objects has some disadvantages,such as decentralized management,loose supervision,improper storage mode increases the risk of damage and loss of seized or impounded objects,potentially threatening the property rights and interests of the original property holders.Meanwhile,relying on confidentiality obligation alone is not enough to prevent the possibility of disclosure of citizens' privacy information;finally,although the system of appeal,accusation and state compensation law can provide relief to the victims of illegal seizure and detainment,the system design is unreasonable and the compensation scope is limited,resulting in poor effectiveness.It is not difficult to find through the analysis of many problems existing in the system of criminal seizure and detainment,in order to reconstruct the system of criminal seizure and detainment,we must strengthen the supervision of the right of seizure and detainment,regulate the operation of power,implement the protection of civil rights,and realize the rebalancing between the value of punishing crimes and protecting human rights.To be specific,it is necessary to take the protection of citizens' property rights and privacy rights as the starting point,implement the guiding role of "trial-centered" on criminal seizure and detainment,and standardize the exercise of the power of criminal seizure and detainment with judicial review and the rule of excluding illegal evidence as the two major starting points.At the same time,with the help of advanced technologies such as big data and cloud computing,we can inject wisdom into criminal seizure and detainment,ensure the integrity of the evidence custody chain,and thus realize the purpose of reverse restricting the right of seizure and detainment.Under the guidance of the value of standardizing the exercise of the right of seizure and detainment and safeguarding the civil rights,it is necessary to reconstruct the system of criminal seizure and detainment from the following four aspects: decision,execution,custody and relief:firstly,a judicial review mechanism for criminal seizure and detainment shall beestablished,transfer the decision-making power of seizure and detainment to the courts and procuratorates,clarify the starting criteria for seizure and detainment and the application of seizure and detainment without certificates;secondly,to grant the right to refuse the right to seizure and detainment,improve the witness system,regulate the use of the list of seizure and detainment and exclude the evidence of illegal seizure and detainment,so as to regulate the execution of seizure and detainment;thirdly,we must establish a unified management agency across agencies,by the use of advanced information technology to achieve the online and offline management of seized and detained objects,strict supervision,so as to guarantee citizens' property rights and privacy rights;fourthly,re-establish the accepting organ of appeal and complaint,improve the handling procedure,at the same time,make clear the scope of criminal compensation,and include the protection of privacy into the system of criminal compensation to meet the actual needs of judicial practice.Generally speaking,it is necessary to promote "rebirth" through reconstruction,so that the system of criminal seizure and detainment can return to the track of proper operation,rejuvenate and better serve the trial. |
PDF Full Text Request