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Improvement Of China’s Criminal Search System

Posted on:2021-05-30Degree:MasterType:Thesis
Country:ChinaCandidate:X LiFull Text:PDF
GTID:2506306290995389Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Criminal search is a kind of investigative act by investigators to search and inspect the bodies,objects,residences and other relevant places of criminal suspects and persons who may hide criminals or criminal evidence.It is legal,specialized and mandatory.According to the procedural law principles such as the principle of proportionality,the statutory principle of procedure,the principle of writ and the principle of due process,a search cannot be initiated at will.When there is a reasonable basis for investigators,they can apply to initiate a search;a mandatory search requires a judge to issue a writ,which is infringing.It must be authorized by a judge before it can be executed,and the subject of the writ should be a neutral judge;when the search is executed,the searcher chooses the means of infringing on the rights of citizens,such as arbitrary search priority,Prohibit night search and bear the obligation of confidentiality,etc.,try to maintain the dignity and decentness of the searched person in the search procedure.The provisions of our country ’s legislation on criminal search are crude,and search is defined as a means of investigation by the state authority to discover the facts of the case,and the searched person is reduced to a tool for ascertaining the truth.Without the status of litigant,there is no series of litigants.Litigation rights.The decision-making body of the search is not separated from the body of execution.The prosecutorial organs are subject to supervision due to the common prosecution function,and the investigating organs enjoy a wide range of search powers.The activation mode that only talks about the purpose and not the conditions,provides convenience for the random start of the search;the investigating agency is the main body of the writ issuance,so that the practice of re-issuing the search certificate after the illegal and unlicensed search is common;the content of the search certificate lacks specificity,resulting in search personnel Extensive search can be carried out;unlicensed search conditions are too strict,which deviates from the original intention of establishing undocumented search,unable to meet the needs of investigation in practice,and alternative measures emerge in endlessly;the illegal search and relief mechanism and sanctions mechanism are not smooth,so that the searched person Rights are infringed and there is no remedy.Based on the procedural law principles such as the principle of proportionality,the principle of statutory procedure,the principle of writ and the principle of due process in the search procedure,comprehensively consider and draw on the search systems of other countries,establish a judicial review mechanism for compulsory search in China,and clarify the essence of the start of the search Condition and specify the content of search warrants;enrich our country’s undocumented search system,add consent search,reconstruct incidental search and emergency search,establish an ex-post review mechanism for undocumented search;build a relief mechanism for the searched in illegal search,improve Sanctions mechanism for illegal search of evidence.Efforts should be made to improve China’s criminal search system,so that the search can meet the needs of criminal investigation while respecting and protecting human rights,so that it can operate under the rule of law.
Keywords/Search Tags:criminal search, writ principle, search without warrant, exclusion of illegal evidence
PDF Full Text Request
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