The Research On The Legalization And Systematization Of China's Criminal Search Rules

The criminal search is one of the important investigation measures for the criminal investigation unit to find out the suspect and collect the evidence of the crime. It is determined by the enfbrceability of the criminal search that the abuse of it might infringe the fundamental rights of the citizens. For this reason, the countries ruled by law have set up the strict rules on the criminal search, such as rules of the initiation, process and legal consequence of the illegal criminal search. So, the criminal search systems with different characteristics have been created in the countries. The overlapping rules among the criminal search systems with different characteristics are concentrated on four aspects as following: the grounds to initiate the criminal search, the range of the object for the criminal search, the distribution of power and the procedure rules for criminal search.Although the Criminal Procedure Law of China revised in 1996 has made great progress in protecting the rights of the defendant, but the procedure of criminal investigation, which always goes wrong, still hasn't changed a lot yet. The more serious is that the criminal search rules of the Criminal Procedure Law of China haven't changed even a little. Looking through the criminal search rules of China, we can find that the current system is too summary and lacking in some important criminal search rules. The most serious problem is the crime investigation unit plays the role of "player" as well as the role of "coach " in the "game" of the criminal search. In addition, the current system is lacking the necessary restrictive rules for theactivity of criminal search. Thus, it is inevitable that the criminal search will be abused and the rights of the citizens will be infringed. Therefore, how to restrain the application of this measure and avoid the abuse are the main issues that the reform of China's criminal search system has to resolve.There are two main basic ways to conduct the reform of China's criminal search system: one is to restrain the power of criminal search through setting up strict rules; another is to control the activity of criminal search by judicature. The second way is more difficult, because it concerns not only the reform of the whole juridical system but also the juridical conception of the people. For this reason, the reform of the criminal search rules has to be conducted in a mild way and the process would better be divided into three phases. Under the current legal environment in China, in the reform of the criminal search rules, such priorities as the essential grounds to initiate the criminal search, the legal content of the criminal search certificate, the essential procedure rules for criminal search and the main types of the criminal search without certificate, must be amplified as soon as possible.The thesis is divided into four chapters; the author analyzed and summarized the conception, significance, and characteristics of the criminal search and the contents of the criminal search system in chapter one. In chapter two, by looking through the criminal search systems of Britain, America, France, Germany and Japan, the author summarized the overlapping rules among the five countries on the following three aspects: the grounds to initiate the criminal search, the range of the object for the criminal search, the distribution of power and the procedure rules for criminal search. In chapter three, the author analyzed the shortcomings and main problems of China's criminal search system. In chapter four, depending on the analysis of the China's current criminal search system, the author thought that there were four problems must be amplified as the priorities to conduct the reform of China's criminal search system. Finally the author gave some legislation advices to the reform.