On The Criminal Search

The criminal search, as an essential method of investihation, plays an inportant role against criminals, but it easily infringes the basic rights of citizen and is disadvantageous to the protection of the human rights because of its compulsouy characteristics, and so on. Along with the development of science and technology specially, the criminal search has developed from the realistic space to the hypothesized space, and may infringe citizen's rights of privacy under the completely secret condition, reasonable legal controls should be rendered. Therefore, the countries of two legal systems mostly control the criminal search by the legislation or the judicial precedent in order to get the balance between the attack of crime and the safeguard of human rights. At present, thought there are some stipulations about the criminal search in the law of criminal procedure and other correlating law of our country, these stipulation is short of comprehension, and manifests the tendency of intense authority. An view of the present situations, the system of criminal search in our country is facing such several questions, namely: whether the principle of warrant must be implemented in the criminal search, whether the system of search with card must be consummated in the legislation, whether the system of non-card search must be stipulated and concreted in the legislation ,whether the evidence obtained by the illegal search can be used in the criminal procedure of prosecution, and so on. While attempting to answer these questions, the author begins to study the system of the criminal search following this thinking, too. Because the system of search with card isn't imperfect, the system of non-card search,the evidences got by the illegal search and the principle of warrant are nearly blank in the legislation to, answer these questions has the extremely vital significance to the fundamental research of the system of the criminal search and the instruction of the practice of the criminal search in our country.Research on the system of the criminal search has four part in the paper:The first part is the outline on the system of the criminal seasch. To define the concept of the criminal search is the initial reseasch in this part, having pointed out that there exist three kinds of "the standard of type" on defining the concept of the criminal search, namely"the type of the nature of behavior","the type of function","the type of the function and nature", and having elaborated the influence of the science and technology on the concept of the criminal search. The nature of the criminal search needs to discriminate, the localization that the criminal search is the compulsory measure of detection or the random measure of detection, is extremely close to the legal control of the criminal search and the protection of the citizen's basic rights, to answer the question can locate the nature of the criminal search. The author think that the criminal search in principle is the compulsory measure of detection, also may be the random measure of detection in the exceptional case. It has been a universal law that the criminal serach must follow some principles in the countries of two legal systems. These include principles that the compulsory detection must follow together, such as the principle of legal procedure,judicial censorship,proportion and warrant, there are also the unique principles that the criminal search must do, such as period principle,specific principle. Certainly, there are the principles, there are the exceptions, such as urgent search. As the method of detection, the criminal search have the pratical necessity and the validity of law, but the criminal search alse has infringement, the infringement has two aspects: the criminal search encroaches upon the personal rights of citizen and the property right of citizen, the criminal search needs controling by law instead of being used willfully because it has the infringement. The system of the criminal serach come from the needs of the crime of attack, readjust continually with the balance between the crime of attack and the safeguard of citizen's rights. The production and development of the criminal serach in Americans Enhlish and China, as well as the trend of development of the criminal serach have been elaborated in the part, and having pointed out that the domain which the criminal search involves in is opening up, the legislation which controls the criminal serach is consummating unceasing along with the development of science and technology.The second part is comparative research of the system of the criminal search. Firstly, having analyzd comparatively and inspected the object and reason of search, the jurisdiction of search as well as the procedure of seaech and so on, taking the legal theory and the system of the criminal search of main countries in two legal systems as the foundation. By the inspection and analysis, the author think that there exist the following common aspects in the system of the criminal search in two legal systems: (1) the search takes warrant as the basic principle, controlling judicially procedure of the search by the judicial authorization and the body of the judicial review; ( 2) respecting the personality of the searched person in the search of body, maintaining the dignity of the searched person as far as possible; (3) adopting the system of testimony while the search; (4) the searcher should keep the searched person secret; (5) the searcher has duty to keep the secret of professional; (6) adopting the strick system of searching record, as well as giving the searched person the certificate without founding out the exhibit and the goods that must be detained after the search; (7) the stipulation of the time and the limit of time for the search. But there exists diversity, namely the legal system of British and American presents the characteristic of "the pattern of the safeguard of right", but the pattern of the search in the country of the legal system of mainland presents the characteristic of "the pattern of controling crime". Secondly, taking the object of the search as the angle of view, having conducted the comparative research to the realistic spatial search and the hypothesized spatial search. In the realistic spatial search, having compared the search of the suspect or the accused person and the search of the third person; having compared the search of body and the search of place. Thinging that the substantive condition to search the suspect or the accused person is different from that to search the third person; so is the way of relief; The request of the search of body is different from that of the search of place, the reason of the search of house as well as the request of testimony is Stricker than that of the search of public place and other place, the procedural restriction of the search of house is Stricker than that of the search of public place and other place. In the hypothesized spatial search, taking American computer search as the example, having elaborated the computer search with card,the computer search with non-card and the computer search with non-card in the work place. And having drawn a conclusion by comparing and analyzing the realistic spatial search and the hypothesized spatial search: the hypothesized spatial search is the same as the realistic spatial search, both can violate the right of citizen, so, both must stick to the legal procedure and the request. Because the hypotheized spatial search has intrinsic particularity, there exist differences in both: (1) the right that the search vioates is different in two kinds of domain; (2)the carrier of the right is different in two kinds of domain of the seaech; (3) the compulsory way is different in two kinds of the domain of the search. Thirdly, having compared and analyzed the several kinds of the system of the search with non-card. To the system of the supplementary search, the emphasis has been put on discussion of the theory basis of the supplementary search and the content of the supplementary search; To the system of agreed search, the emphasis has been put on the disscussion of the theory basis of the agreed search,. the constitution of the agreed search as well as the limit of the agreed search. To the system of the urgent search, the emphsis has been put on disscussion of the controling pattern (the pattern of application,the pattern of authority and the pattern of mixture) of the power of the urgent search and the validity of the urgent search. The system of the secret search originally doesn't belong to the category of the non-card search, it has been elaborated in the chapter for the convenience of writing. To the system of the secret search, the emphasis has been put on the disscussion of the legislation of the secret search and the judicial precedent in the related country,the coordination of the secret search and the principle of law. Finally, the questions of balance in the system of the criminal search has been disscussed. There exist the multi-dimensional conflict of value, the conflict of the state power and the right of citizen in the criminal search. To solve those conflicts needs the balance of legislation and judicial balance. In this part, the related content on the mechanism of judicial examination and the mechanism of procedural referee in the criterion of criminal judicature of the United Nations and the legislations of the related locality and country in two legal ststems has been discussed emphatically. Having pointed out that the construction of the mechanism of judicial examination and the mechanism of procedural judgement has provided the searched side with the procedural safeguard, alse provided the procedural safeguard for the balance between the investigated institution and the search side.The third part mainly studies the question and the outlet on the system of the Chinese criminal serach. Firstly, the present situation and the question of the system of Chinese criminal serach, as well as the reason bringing about the present situation and the question have been studied. In the aspect of legislation, having inspected the present situation of legislation of the system of the search with card and system of the search with non-card; In the aspect of judicial practice, having promulgated the present situation that the criminal search goes on in the judicial practice of our country by analyzing three illustrative cases. And on the base of the analysis on the present situation of the criminal search, having pointed out the questions of the system of the criminal search in our country, namely: (1) the distortion and flaw of basic principle; (2) lack of the detailed description of the reason for the search and the scope of the search with card, lack of the stipulation of expiry of the card for search; (3)the stipulation of non-card search isn't comprehendive, lack of the stipulation of the consent search, the supplementary search and urgent search have been stipulated separately; (4) there exist the questions in the executive proceduce of search. And having pointed out that the present situation of the system of the criminal search in our country and the reason of existing questions mainly has three aspects: (1) the reason of culture; (2) the reason of law; (3)the reason of fundamental research. Secondly, the consummation and reform of the system of the criminal search in our country have been discussed. Thinking that consummating and reforming the present system of the criminal search in our country should take the theory of balance as the instruction, link the practice of the criminal judicature in our country; having proposed the basic the way consummating and reforming the system of the criminal search in our country and the concerete suggestions of legislation. The main content is to study the question of the ability of evidence obtained by illegal search in the fourth part. The evidence of the illgal search is the material of evidence got by the search violating the legal procedure, the principle as well as substantive document. There exists great difference on the ability of evidence of the evidence of illegal search in the legislation and the judicial practice of different countries, on the basis of the illegal search and its type,the illegal evidence of search and its manifestation, the article has analyzed and studied comparatively the ability of evidence of the evidence of illegal search in main countries of the two legal systems, such as English,American,Germany,Japan, and so on, from two aspects of the legislation and the judicature. At last, having discussed the questions in the legislation and the judicature on the ability of evidence of the evidence of illegal search in our country, and put forward the proposal of legislation so as to constructing the eliminating rule of the illegal evidence of search...