| Although, the37and39of our country’s fundamental law formulate that personal rights and housing rights are safe from illegal invasion, this is also foundation of criminal search procedure in Law of Criminal Procedure. The criminal search procedure in Law of Criminal Procedure is general and simple, and still not to establish the legitimate procedure of criminal search. So, this right of constitutional is can’t to achieve in practice. The new Law of Criminal Procedure, which will be carry out on January1,2013, is no concern about the criminal search procedure. So, I will opinion out my viewpoint to perfect it.The criminal search procedure is not a new subject, early in1997, when the Law of Criminal Procedure had been carried out there are many scholars present opinions and suggestions especially, as the ideas of human rights and kinds of behaves to infringe on the personal rights, the achievements of research the criminal search procedure are emerge in an endless stream. I combine with legislation trend and practical situation on the basis of others research result, propose myself opinion, in order to call on legislative branch and judicial department to notice the criminal search procedure, make it advance with the times. This essay is mainly from three sections to exposit.In the first place, consider and position of criminal search procedure. In practice the criminal search procedure plays embarrassed role. On the one hand, as one of procedures of investigation, which is provided in the Law of Criminal Procedure. Personnel in charge of case executive of criminal procedure power represent nation in evidence. On the other hand, when the investigators when dealing with non-criminal cases they will take similar measures. So in theory, some persons think that criminal search is equipped with administration nature. So, the essay to discuss it from two parts, moreover, to realize the criminal search procedure, from function and characteristic. In order to make it plays a role in practice. I will make a right position for it.Secondly, to analyze the current situation of our country’s criminal search procedure, integrate with other country’s advanced legislative experience. Actually, all institutional guarantees have become system in other counties contemporary even earlier. Such as Civil law countries and Law Department of Britain and American. In Taiwan since the law of criminal procedures had been amended in1997, the criminal search procedure had been become focal issue to the whole society. Improve the search procedure and establish the agreeable of search procedure, in Law of Criminal Procedure which had been amended again in2001, is a good reference function to us. I compare with others’the same system and summarize kinds of standpoints, take note of lots of in the criminal search procedure, such as, decided principal、 operative norm and right guarantee.Finally, I point to several suggestions to deal with the problem. The fundamental principle, which the criminal search procedure should be follow and the right source should be rich. In order adapt to the social development. So, expand lawyers’rights. So as to the new law, the divisions of rights of minor criminal case in legislated control, all of these, are the suggestions in the essay. The new highlight in the new Law of Criminal Procedure is it combine with Administrative Procedure Law this is also supply a train of thought for writer, that is put favorable factor, which in administrative procedure law to the criminal search procedure. So, one of the highlights of this essay is to apply advantages principles of administrative in the criminal search procedure. The other highlight is advice to establish consent search in the criminal search procedure, after analyze the feasibility of it in our country. |
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