Normative Analysis Of Investigative Experiments

As an investigative measure with the characteristics of presumption of investigation,the conclusion of investigative experiment plays a prominent role in determining the existence of crime and the severity of crime in the trial of criminal cases.Since the Criminal Procedure Law in 2012 included the records of investigative experiments into the statutory types of evidence,combined with the three major guarantees of procedural approval system,whole process audio and video recording,and witness system,investigative experiments have gradually developed towards standardization.However,the standardized investigative experiment is regarded as a procedural measure to strengthen the legitimacy of evidence in practice,resulting in the current situation of judicial practice of excessive abuse of investigative experiments.Under the background of trial-centered litigation reform,how to get rid of the current situation of abuse of investigative experiments,and scientifically and effectively standardize the investigative experiment system will become an important issue.Taking the relevant criminal case judgments of the China Judgment Document Network as a sample,this study analyzes the abuse of investigative experiments in some cases at the "real" level by type,combines the legal norms of investigative experiments at home and abroad,explores the essential attributes of investigative experiments at the "should" level,and puts forward corresponding countermeasures.In addition to the introduction,this article mainly revolves around four parts:The first part introduces the abuse of investigative experiments and its causes.investigative experiment abuse refers to the application of investigative experiments when investigative experiments should not be applied,which violates the original intention of the establishment of investigative experiments as an investigative measure,mainly including: conceptual abuse,functional abuse,and activation standard abuse.From the perspective of cause,the abuse of investigative experiments is an active response to the trial environment from the perspective of utilitarianism,a misalignment between formal review and substantive examination from the perspective of evidence type,and a passive choice for investigation agencies to pursue investigation benefits under the guidance of pragmatism.The second part expounds the overview of Chinese and foreign investigative experimental research.By sorting out the provisions on investigative experiments in previous editions of the Criminal Procedure Law,the Provisions on the Procedures of Public Security Organs in Handling Criminal Cases,and other norms,the development context of domestic legal norms for investigative experiments is clarified.At the same time,a comparative analysis of the regulations on investigative experiments in China and Russia,the mainland and Macao is compared,and the commonalities of investigative experiments are extracted.The third part summarizes and analyzes the normative expression of reconnaissance experiments.Under the premise of analyzing the design value and function of the investigative experiment system,the actual needs,scientific basis and trial significance of the investigative experiment are discussed,and the core essence of the investigative experiment is revealed with the help of "anchoring" and "embodiment" theory from the perspective of the investigation horizon to the evidence horizon: first,the transition from prototype object to model;The second is to conduct experimental research on the model;The third is to transition from a model to a prototype.In addition,the boundaries of reconnaissance experiments are summarized from three aspects: space-time attributes,factual states and logical starting points,and the standardization problem of reconnaissance experiment initiation is solved.The fourth part explores the limits and mitigation measures for the abuse of detection experiments.First,build a sound legal and regulatory system for investigative experiments to achieve a standardized connection between the normative level and the practical level;Second,standardize the logical framework applicable to investigative experiments;Thirdly,the ranking standards of investigative experiment operations are clarified,and the supervision procedures of investigative experiments are explored from the perspective of supervision constraints.Finally,the substantive review of investigative experiments at the trial stage is deepened.