The Abuse Of Residential Surveillance And The Countermeasures

Residential surveillance is existing as one of the five compulsory measures in our country.And there has been long-standing controversy about it in both theory and practice.The system of the residential surveillance was greatly improved and complemented when the Criminal Procedure Law was revised in 2012.So the controversy over whether to keep residential surveillance has almost ended.However,there are still several contradictions and deviations in the current residential surveillance system,for instance,in the area of understanding localization,procedural norms,practical application and so on.What?s more,there are much space left for abuse of process in some articles of the new Criminal Procedure Law,therefore,all the problems emerged at the same time.Further,we have a series of questions that needed to be responded: After the significant modifications to the system of the residential surveillance,whether the purposes have been achieved? What new problems were exposed during its operation? And what countermeasures we should take?This study is based on legislation and practice,firstly reviews the issue of the abuse of residential surveillance,defines “abuse” in this study,points out that the changes in positioning and applicable specifications of residential surveillance after the revision of the Criminal Procedure Code in 2012,and finds the space left for abuse in the new law.Next,the study summarizes the current abuse of residential surveillance as far as possible,mainly summarized as three major aspects: the motivations for using it are unlawful;power distribution is not clear and the constraint is not enough;problems occur frequently in actual practice.Then,combined with some cases and research data,the study expounds respectively each aspect of the specific performance.On this basis,through the analysis of the problems,tries to propose countermeasures.Firstly,we must deepen our understanding of residential surveillance,that is,further clarify the functional value and conditions of application of the residential surveillance.Secondly,we should improve the system design,in practical terms,regulate the operation of power,definite the relevant legal responsibility,strengthen the link of the residential surveillance system and other systems,focus on the improvement of internal and external supervision mechanism,and extend the solution channels for right relief.Thirdly,we need to impose severe regulations,mainly reflected in the operational level,including defining specifically the range of activities and the degree of freedom of the person subjected to execution,forbidding interrogation at designated home in principle,carrying out diversified monitoring means step by step,turning designated home residential surveillance into centralized and fixed model,etc.Only in this way can residential surveillance play its full functions and reflect the reality of its value,so as to achieve the unity of punishing offense and securing human rights in criminal litigation.