Research On The Legal Regulation Of Criminal Compulsory Sampling

The development of science and technology has brought about a change in criminal investigation methods,and also affected the proof mode of criminal cases."Biological evidence" is playing an increasingly important role in criminal proceedings owing to its objectivity and reliability.Biological evidence can be used to find clues for investigation and to prove the facts of specific cases in court.Mandatory criminal sampling is an important investigative method for obtaining "biological evidence".However,compulsory sampling is one of the areas where the state prosecution conflicts with the basic rights of citizens.How to protect human rights has become a problem we must think about.The amendment of China’s Criminal Procedure Law in 2012 has authorized investigators to take physical samples of criminal suspects and victims.However,the legislation is relatively negligent and vague,and it is difficult to play a regulatory role in the right of investigation.Improper interference in the basic rights of citizens often occurs in practice.This article analyzes and interprets the basic theory of criminal compulsory sampling,extraterritorial legislative experience,the dilemma and causes of legislation and practice,and proposes a “relatively reasonable” reform path based on China ’s institutional resources and institutional environment to promote the rule of law in the criminal mandatory sampling system.There are four main chapters in this article.The first chapter is the basic theory of the legal regulation of criminal compulsory sampling.Firstly,it is necessary to define the compulsory sampling,analyze its constituent elements,then make a analysis of criminal search,personal inspection,and judicial identification.And acquire a better understanding of this investigative measure through the classification of compulsory sampling.Compulsory sampling has irreplaceable value in the fight against crime,but at the same time this investigation measure will interfere with the basic rights of civil entity and procedure,including the rights of the person and freedom,the right to privacy,and the privilege against self-incrimination.Therefore,while recognizing the legitimacy of the state’s intervention in basic rights for the public interest,we must also set a boundary for it to avoid the abuse of public power.The last section demonstrates the necessity of regulating the criminal compulsory sampling at the national level and the citizen level respectively.At the national level,it is necessary to maintain the legitimacy of the investigation right,and at the citizen level,it is necessary to protect the basic rights of citizens.The second chapter examines the laws and regulations of compulsory sampling in foreign countries.By examining the countries represented by the common law system and the countries represented by the civil law system,it can be found that those countries have strict legal regulations on compulsory sampling through detailed legislation or jurisprudence.And The protection of the basic rights of citizens is the basic starting point of system design.There are many experiences we can learn from: compulsory sampling is subject to substantive rules through the reification of the principle of proportionality,compulsory sampling is subject to procedural rules through the writ system and enforcement procedures,and protect citizens’ basic rights through relief system.However,we also need to treat the experience of foreign countries dialectically,and find out the irrationality and incompatibility with our system in order to construct our criminal compulsory sampling system more rationally.The third chapter is about the dilemmas and causes of China’s criminal compulsory sampling system.In legislation,normative documents such as the Criminal Procedure Law,the Supreme People ’s Court of Justice ’s Interpretation,and the Ministry of Public Security ’s regulations are the legal basis for China ’s compulsory sampling system.In practice,investigative agencies generally use this investigative measure to combat and prevent crime.However,compared with outside the country,there are omissions and deficiencies in the substantive regulation,procedure regulation of compulsory sampling and the protection and relief of citizens’ rights in our country.The problem of the mandatory sampling system was discovered,and the reason for the problem also need explored.The compulsory sampling system does not exist in isolation.It is deeply embedded in the basic logic of the operation of the investigative power.It needs to be examined in a broader context.And then we can find out the deep legislative and institutional reasons to solve these problems completely.The fourth chapter is the improvement measures of legal regulation of criminal compulsory sampling in our country.The first section proposes a “relatively reasonable” solution at the macro level.It is also a prerequisite for the construction of the mandatory sampling specific system.The second section puts forward specific suggestions from three aspects: entity regulation,procedure regulation and right relief.In the last section the author discusses the process of biological sample processing and destruction,as well as the construction of criminal DNA database in our country from the perspective of protecting citizens’ right to self-determination of information.