Analysis Of Temptation Investigative Drug Trafficking And Transporting Crime

Temptation investigation is widely used in drug crime investigation because it makes the enticement expose the criminal intent and helps the investigation organ to obtain the key evidence of conviction by setting a special loop.However,the disorderly application of the system has also made it hover on the edge of the expansion of rights and fall into the imbalance between fighting crime and protecting human rights.The lack and blank of the existing system in China,the inconsistent standard of legitimacy determination,and the ineffective remedies for illegal temptation investigation are increasingly exposed,which leads to ambiguous determination of the legality of the "induced" behavior in judicial practice and the controversy of conviction and punishment.In order to timely and effectively break the dilemma of practical operation disputes and provide a path for the improvement of the temptation investigation system,the data of 133 sample cases are analyzed to summarize and sort out the data of judicial decisions and the specific temptation investigation discretion,so as to understand more clearly the mainstream view of the application of the system in the current practice.At the same time,summarizing three controversial focus from the typical case of Li ’ s crime of trafficking and transporting drugs and Zhang ’ s crime of trafficking and transporting : First,the determination of subjective intent;second,the identification of “ induced ”behavior;third,the application of the traditional dichotomous structure and the separate examination standard.Based on the presentation and consideration of the controversial focus,the following conclusions are drawn: the determination of subjective offenses should avoid falling into a simple “ time point ” standard and makes both parties in the accusation balance between the evidence and the explanation.In the identification of induced behaviors.The courts should break the hostile attitude,they may analyze the specific investigation methods of the investigative organs objectively and fairly.In the identification framework of sting investigation cases,the separate examination standard should be selected.In order to improve the specific details of the separate examination standard,the British and American “ police trap ” system theory is compared and used for reference.Combined with the actual situation of the rule of law in China,the two-way control mechanism of crime tendency is tried to be established.Secondly,the error cost level of “ induced behavior ” is proposed,and suggests the establishment of an“ induced behavior ” identification framework,meanwhile clarifies the relationship between “ induced behavior ” and illegal temptation investigation behavior under the error cost level.Finally,countermeasures against illegal temptation investigation are proposed from the perspectives of review and supervision,boundary of proof,exclusion of illegal evidence,and substantive defense of innocence.