A Study Of The Improvement Of The System Of Search Without Warrant In China

Search is an important compulsory investigation action taken by the investigation organ in the process of investigating a case.According to whether a search warrant is held at the time of search,search can be divided into search with a warrant and search without a warrant.According to the provisions of article 138（2）of The Criminal Procedure Law of China,the warrantless search,as an exception of the writ of search,can be carried out only when the investigator meets the dual conditions of detention and arrest and meets the emergency situation.Moreover,this article has been amended twice by the Criminal Procedure Law,but its content has not changed except for the change of the serial number of the article.In the practice of investigation,investigators have realistic demand for search without warrant based on the need of case investigation and the particularity of criminal investigation.However,based on the type of unlicensed searched and applied conditions of rigid single status quo,investigators in the investigation of the case in the process of implementation of undocumented behavior are often forced to break the law for unlicensed search range of rules,the basic idea of exceeding their behavior violate the rule of law country,it may bring the negative consequences of unimaginable.In view of the problems exposed in the investigation practice of our country,it is urgent to explain the provisions of the current legal norms on the warrantless search reasonably and actively explore the perfect path of the warrantless search system.In view of the problems exposed in the investigation practice of our country,it is urgent to explain the provisions of the current legal norms on the warrantless search reasonably and actively explore the perfect path of the warrantless search system.This paper analyzes the problems existing in the system of search without warrant in China,including single type,strict application conditions,inadequate procedure standards,lack of tort relief measures,etc.Based on the advanced experience of the warrantless search system in the United States and Germany,the following suggestions are reasonable and feasible: On the basis of the existing types of search without warrant in Our country,we should set up emergency search separately,add consent search,reasonably set up the common requirements and separate applicable conditions for search accompanied by arrest,emergency search and consent search.To improve the procedures of warrantless search,including identification and reason disclosure,search time,search scope and special search subject,and post-examination mechanism of warrantless search.Finally,effective relief measures should be established for the subject to be searched in judicial relief and substantive compensation for the act of violating the personal rights and property rights of the subject to be searched.