| Technical investigation has become an important weapon in today’s judicial practice to deal with difficult,complex and high-tech crimes.Although they have been widely used in the investigation process,they have always been hazy in the criminal proceedings in the past and lack of explicit regulation by law.Until 2012 that the Criminal Procedure Law set up a special chapter to stipulate technical investigation as a statutory investigation mode,and it was really uncovering the veil of mystery.It is true that while technical investigation improves the efficiency of investigation,it will inevitably infringe on citizens’ privacy rights,and there is a risk of affecting the public’s trust in the investigation procedure.The deeper the field of technical investigation,the wider the compression of the field of privacy.How to balance public and private interests is a problem that needs to be solved urgently by legislation.The current Criminal Procedure Law amended in 2018 has made principled provisions on the subject of technical investigation,the scope of the case,the object of application,the approval procedure,the limitation of time,the destruction of evidence and the obligation of confidentiality,etc.,which has imposed partial restrictions on the exercise of technical investigation,to a certain extent,it curbed the abuse of technical investigation.Although the current legislation has significant progressive significance compared with the situation that cannot be followed,its existing regulations are still in a relatively general and rough form,there is no clear explanation on the regulation of technical investigations and the methods of privacy protection.Which is lack of operability and does not conform to the spirit of safeguarding human rights of the Criminal Procedure Law s.To solve the technical investigation procedure in our country in the privacy of the existing predicament,this paper analyzes the concepts and characteristics of human rights and technical investigation,starting from the legislative evolution and current situation,analyzes the existing problems of technical investigation and privacy legislation.Proceed from legislative evolution and present situation,analyze the existing problems of technical investigation and privacy legislation,draw lessons from the experiences of countries with mature technical investigation measures,puts forward several suggestions from two aspects of restricting the exercise of technical investigation measures and perfecting the privacy protection mechanism,to construct the balance relationship between the two models to bring beneficial ideas.Specifically,this paper is divided into five parts:The first part is an overview of the right of privacy in technical investigation procedures.It mainly elaborates the basic theories of technical investigation and the right of privacy in criminal proceedings,and it introduces the conceptual division of technical investigations and the five characteristics of technical investigation,which is Technology,concealment,coercion,strictness and specificity.And it expounds the development of privacy rights,explain the objective protection field of privacy protection scope and the definition standard of reasonable expectations of privacy,also discuss the protection object of privacy right in the field of space privacy,life privacy,and information privacy.The second part mainly interprets the legal norms of technical investigation and privacy rights,respectively expounding the development of technical investigation law since the 1993 "Security Law of the People’s Republic of China" first stipulated technical investigation and the current legislation on the scope of technical investigation application,Applicable objects,regulation of approval procedures,and the legal sources of privacy protection and the embodiment of legal protection of privacy in technical investigations.The third part is an analysis of the dilemma of privacy protection in technical investigations.It points out the conflicts between our country’s current technical investigation measures and the protection of citizens’ privacy rights,expounds the threat of technical investigations to the right to privacy and the characteristics of the conflict between the two,and Discuss that the current legislation has some shortcomings such as principled technical investigation regulations,lack of effective supervision in technical investigation,lack of regulation in illegal technical investigation,and imperfect privacy relief system.The fourth part The main analysis and comparison of the United States,Britain,Germany,Japan and other countries outside the region that how does the right of privacy in technical investigation be stipulated in the aspects of approval procedure,application scope,material handling,sanctions,rights protection in these countries.Summarize the successful experience of the regulation of technical investigation and the protection of citizen’s right of privacy,and bring reference value for the protection of citizen’s right of privacy in China’s technical investigation.The fifth part is the suggestion for the reconstruction of privacy protection mechanism in technical investigation,that is,it is perfected from the perspective of restricting the right of technical investigation and protecting the right of privacy,while elaborating the applicable norms of technical investigation,establishing the supervision and approval mechanism and building the restriction of illegal technical investigation,it also strengthens the legislation of privacy protection,establishes the remedy right for the counterpart of technical investigation,and improves the compensation system for the infringement of the privacy right,so as to implement the remedy measures in place. |
