| Chinese warrantless search system,as one of many investigative measures,only sees when the execution of arrest and detention happen.When an emergency occurs,investigators may search without a search warrant.While investigating,the authority should pay attention to basic human right protections of the individuals in order to achieve the balance between power and rights,which the principle of justice calls out during the whole criminal procedure.The warrantless search system already existed before 1979 when the first Criminal Procedure Law of PRC was approved by the National People’s Congress.However,the idea of "Value Substance,Devalue Procedure" being the main reason,the system has not been amended or gained enough attention since 1979,which leaves a blank to the system that has made it imperfect.The system has been overly applied to Chinese judicial practice,with which the invasions of fundamental rights of citizens would be highly probable.Hence,the management and control of the system by the legal stipulations are to be in desperate need.The investigation-centered concept had been prevailing for a long time,and the principle of punishing crimes had been regarded as one of the most important principles in judicial practice.What must be strengthened is that China has been promoting the reform of the trial-centered criminal procedure systems since 2016.As a procedural regulation,the system also needs a systematic reformation,which should ask the criminal investigation authority to conduct by law to protect basic rights of the individuals being searched and ensure the balance between substance and procedure,which also helps to advance and realize the Rule of Law.South Korea enacted its criminal procedural law in 1954,since when the law has been revised 40 times and more by now.Its warrantless search system also has been amended several times that led to an advancement compared to other nations.As a civil law country,Korea regulated the system explicitly in its code by multiple dimensions.Due to the country’s strict abidance by writ doctrine,there has been rigorous limitations in terms of the application of the system,which has made the conduction of the system an exceptional case in criminal procedures.More over,detailed provisions are made in its law on the application conditions,phase and location,judicial review,and supply of the warrant.The study consists of five chapters.Chapter one represents the purpose,significance,contents,range and methods of the study.Chapter two outlines the warrantless search system,in which the author states and analyzes the concept and the nature of the system.In chapter three,the author presents Chinese legislative status of the system and various issues,such as overly severe conditions of application,abuse of application,lack of judicial review and warrant supply mechanism.Chapter four introduces Korean legislative status on warrantless search system and its implication to Chinese practice.The comparisons between Chinese and Korean systems on the application conditions,phase and location,supervisory mechanisms and warrant supply are also talked about in the fourth chapter.In chapter five the author summarizes the implication of Korean warrantless system to China and gives four perfecting suggestions.Last but not least,the author gives conclusions and looks forward to further perfecting the warrantless search system. |
