Search is a kind of investigation behavior that the investigation organ searches and inspects the person of the criminal suspect and the person, articles, residence and other relevant places that may hide the criminal or criminal evidence in order to collect criminal evidence and arrest the criminal. Because the search may not only infringe on the personal, property and privacy rights of criminal suspects and defendants, but also infringe on the rights of people other than criminal suspects and defendants, all countries have clearly stipulated the search procedure in the criminal procedure law, and some countries even raised it to the height of the constitution.
Constitution of the people's Republic of China
Articles 37 and 39 of the Constitution (hereinafter referred to as "the Constitution") respectively stipulate: "Unlawful detention, unlawful deprivation or restriction of citizens' personal freedom by other means, and unlawful search of citizens' bodies are prohibited." "Citizens' homes are inviolable, and it is forbidden to illegally search or illegally invade citizens' homes." In order to ensure the implementation of the above provisions,
Article 245th of the Criminal Law of People's Republic of China (PRC) (hereinafter referred to as the Criminal Law) stipulates: "Whoever illegally searches another person's body or residence, or illegally invades another person's residence, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If a judicial officer abuses his power and commits the crime mentioned in the preceding paragraph, he shall be given a heavier punishment. " However, the provisions of the Criminal Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Criminal Procedure Law) are too general and brief, and only five articles (Article 1 19- 123) stipulate the procedures and purposes of the search.
Because the criminal procedure law is far from establishing proper search procedures, it is difficult to identify illegal search in judicial practice, which makes the basic rights of citizens stipulated in the constitution unable to be guaranteed and implemented, and the crime of illegal search stipulated in the criminal law is often ineffective.
(Note: In practice, most of the crimes of illegal search investigated are crimes of unauthorized search, and judicial personnel are rarely prosecuted. This is because, to a certain extent, criminal search has no legal basis, so there is no illegal search. Due to the lack of search procedures, there is no basic premise for the study of the exclusion rules of illegal evidence (physical evidence), so that the research on this issue cannot make a breakthrough. In order to solve the above problems, it is urgent to reflect on the current search procedures, learn from international practices, and reconstruct our criminal search system.
First of all, reflection on the current search system in China.
1. Search is the exclusive power of the investigation organ, lacking the necessary power checks and balances. According to the provisions of the Criminal Procedure Law, the main body of the search is investigators (mainly public security personnel and prosecutors), and the same investigation organ is responsible for both the decision of the search and the execution of the search. According to Articles 205 to 206 of the Procedures for Handling Criminal Cases by Public Security Organs, the search shall be approved by the person in charge of the public security organ at or above the county level, and the number of investigators shall not be less than two; (Note: See the latest judicial interpretation of criminal law writing group:
The latest judicial interpretation of criminal law, China University of Political Science and Law Press, 1998, p. 3 18. )
In self-investigation cases, according to
According to Article 177- 178 of the Criminal Procedure Rules of the People's Procuratorate, the search warrant is issued by the procurator-general, conducted under the auspices of the procurator and attended by the judicial police. It can be seen that in China, search is the exclusive power of the investigation organ and is not subject to checks and balances by other power organs. The operation of this absolute power inevitably contains the danger of power abuse.
2. Search procedures can be easily initiated without proper proof standards. The Criminal Procedure Law and related judicial interpretations do not stipulate the substantive conditions (or reasons) of the search, but repeatedly emphasize the objective requirements of "collecting criminal evidence and arresting criminals", which is actually the whole investigation.
As a specific investigation behavior, the purpose and task of the activity lack pertinence (search is usually a compulsory investigation behavior in China).
If there is no search reason with specific proof standard as the core, starting the search procedure only for the need of investigation will inevitably lead to the abuse of search, and the result will be the violation of citizens' constitutional rights.
3. The search warrant is vague and stereotyped, lacking pertinence and pertinence.
According to the provisions of the Criminal Procedure Law, unless there is arrest, detention or emergency, a search must be conducted with a search warrant. From the investigation practice, the search warrant is a kind of fill-in-the-blank document, which has two couplets-the home page and the stub. The front page should be filled in with the name of the executed person, the address of the searched person and the name of the searched person in turn, and the tail should be stamped with the private seal of the public security bureau chief and the official seal of the public security bureau, and the issuing time should be filled in; The stub form shall be filled with the document number, the name of the inquired person, the filling time and the filling person in turn according to the fixed format items.
(Note: See Jiang Lihua: Research on Search Procedure from the Perspective of Rule of Law, Contemporary Law, No.5, 2004. ) In the search warrant of our country, there is no restriction on the reasons for the search, no requirement on the clear search object, and no stipulation on the search period, which undoubtedly opens the door for the arbitrariness of the search: investigators have the right to search all places that may be related to crimes, and may also ignore important places where criminals and physical evidence are hidden, and the search warrant has no guiding and limiting effect on the search.
4. Rough implementation procedures and lack of necessary humanistic care. Although the Criminal Procedure Law has made some provisions on the execution procedure of search, there are still many loopholes. In the absence of provisions on consent to search, there are no provisions on search time, confidentiality obligations during search and search consequences. In practice, some people search indiscriminately, while others are arrogant. In some cases, they have caused undue property losses and other undue injuries to the people being searched, and the civilized degree of law enforcement needs to be improved.
5. Ignoring the rights of the searched person, the infringed person has no recourse in the face of illegal search. In the current search procedure, the searched person is completely in a passive and passive position, lacking the restriction of search right from the perspective of rights; For searches that do not meet the evidentiary conditions and violate legal procedures, due to the lack of a neutral third party, the searched person has no channel to apply for rights relief and can only sit idly by and watch his rights being violated.
6. There is no clear stipulation on the consequences of illegal search, and there is no procedural stipulation on illegal search. Although the Constitution explicitly prohibits illegal search, the Criminal Procedure Law and related judicial interpretations have no corresponding procedural consequences. China has not yet established the exclusionary rule of illegal material evidence, and the evidence obtained by illegal search can be used as the basis for conviction. The investigators of illegal search have gained practical benefits from illegal behavior, which has led to the spread of illegal search. In some places, the self-investigation departments even searched the personal and office premises of duty criminal suspects under various pretexts before filing a case and initiating criminal proceedings, in order to obtain evidence conducive to handling cases. This practice seriously violates the rights of the searched person and makes the dignity of the law disappear.
Secondly, the legislative characteristics of the search system in the two legal systems. Today, the criminal procedure law of any country is formulated on the basis of absorbing the beneficial experience of other countries and regions. Because the search is not only related to the effective control of crime, but also closely related to the protection of human rights, the common law system and the French civil law system countries have made detailed provisions on the search procedure in legislation or precedent, involving the reasons, authority and specific procedures of the search. (Note: See Sun Changyong: Investigation Procedure and Human Rights. Although the provisions of search procedures in the two legal systems are complicated and have their own emphases, the Anglo-American legal system countries pay attention to the legitimacy of starting the search, and the continental legal system countries emphasize the legitimacy of the search process, but the design of search procedures in the two legal systems countries still has many * * * characteristics, which are worth learning and learning from in China.
1. Specify the substantive conditions of the search. The necessary condition for a search is the reason for starting a search, which is usually the evidence requirement for deciding a search. In the United States, the standard of search warrant is to have "probable cause", and the probable cause exists on the condition that the facts and circumstances held by law enforcement officers can make a reasonably alert person believe that something can be found in a certain place or someone. Possible reasons can be determined in the following three ways:
(1) police's own understanding of facts or cases;
(2) Reporting by a reliable third party (informant);
(3) Information and other supporting evidence. (Note: See Cheng and Yang: Arrest and Search in American Criminal Proceedings, China Journal of Criminal Law 200 1 No.5.. For the unlicensed search attached to the arrest, the "reasonable basis" of the arrest is the reason for the search. In Britain, a search needs a "reasonable reason". For example, if the magistrate is convinced that there are reasonable grounds to believe that someone has committed a serious arrestable crime, and the materials about a house in the application may be of great value to the investigation of the crime, and these materials may be relevant evidence, he may authorize the search of a house. (
Note: See Article 8 of the British Police and Criminal Evidence Act 1984 compiled by the Criminal Law Research Center of China University of Political Science and Law:
British Criminal Procedure Law (Selected Edition), German and Japanese Criminal Procedure Laws set different standards for criminal suspects and people other than criminal suspects, and the latter is more stringent. For example, in Japan, the search for suspects can be summarized as "necessary", while the search for people other than suspects is "enough to think that there are items that should be seized".
2. Search follows the requirements of writ doctrine in principle, except for unlicensed search. In order to prevent the abuse of investigation power, modern countries ruled by law generally exercise judicial control over investigation power. In principle, the right to search belongs to the judge, and the search warrant is issued by a neutral judge, and investigators can conduct a search with the search warrant. Of course, in order to control crime, countries have clearly stipulated some exceptions in emergency in their legislation. In the United States, based on the requirement of the writ doctrine of the Fourth Amendment to the US Constitution, in principle, a search warrant must be issued by a "neutral judge", and the investigation organ has the right to search only in an emergency; The right to search before and after arrest in Britain belongs to the inherent power of the police, but in other cases, no search can be carried out unless the person being searched agrees or the magistrate approves;
Article 105 of the German Criminal Procedure Law stipulates:
"Whether to search is only allowed by the judge, and it is also allowed to be decided by the procuratorate and its auxiliary officials when there is a danger of delay." Li Changke, China University of Political Science and Law Press, 1995, pp. 36-37. In the current criminal investigation in France, the right to search belongs to the judicial police and judicial personnel; The search right in formal investigation belongs to the pre-trial judge, but the pre-trial judge can authorize the judicial police to exercise it. Japan's right to search without a license belongs to the investigation organ, and its situation is clearly stipulated by law; A search warrant requires the permission of the court.
3. The search warrant must meet the requirement of "specificity". In order to limit the abuse of police power, both countries of the two legal systems require that the search object be clearly stated in the search warrant, so that the police who conduct the search can reasonably determine the specific places, vehicles and personnel to be searched. For example, in the United States, when searching a city, the search warrant must specify the street and house number of the searched building or other sufficiently specific matters; A valid personal search warrant must specify the name of the person being searched or other matters sufficient to specify the person being searched. China Founder Publishing House, 2000, p. 105- 106. Item 6 of Article 15 of the British Police and Criminal Evidence Act 1984 stipulates: "A search warrant shall specify the name of the applicant, the date of issuance, the laws and regulations on which it was issued, and the house to be searched, and identify the items and persons to be searched as far as possible." According to the requirements of the precedent of the German Constitutional Court, the German search warrant requires the implementation of "specificity" requirements. For example, an article search warrant must specify the suspected crime, the characteristics of the article, the place to be searched, and explain why the article can be expected to be found in the place to be searched.
Article 2 19 of Japan's Criminal Procedure Law stipulates that a search warrant must specify the suspect's name and charges, the place, body or object to be searched, the effective period, the date of issuing the search warrant, the date of non-execution and return, and be signed and sealed by the judge.
4. Strict and detailed search procedures. In order to prevent the arbitrariness of search, the countries of the two legal systems have made complete provisions on the procedures for performing search, including the following contents:
(1) Announce the search intention to the searched person in advance. In principle, American police must knock on the door before entering the residence with a search warrant, and ask to be allowed to enter the residence after telling the identity and purpose of the door opener. However, there are exceptions to this kind of announcement, that is, according to laws and precedents, if it is likely to cause danger to life or limbs, or if the evidence is destroyed or the suspect escapes, it may not be announced in advance.
(2) Strictly implement the requirements of search warrants. In the United States, the scope of search shall not exceed the scope of space and articles specified in the search warrant; In Britain, once the items specified in the search warrant are found or the police find that they are not in the right place, the search should stop. (Note: See Sun Changyong: Investigation Procedure and Human Rights, China Founder Press, 2000, p. 1 13. )
(3) In principle, searches should be conducted during the day, unless otherwise stipulated by law. The United States prohibits night searches in principle; According to the French Criminal Procedure Law, no matter whether it is a case of flagrante delicto or a formal investigation conducted by the investigating judge, a search shall be conducted before 6 o'clock or after 2 1 o unless otherwise stipulated by law. In addition, the countries of the two legal systems have made detailed provisions on the witness system, security measures and the making of search records.
5. Pay attention to protecting the rights of the searched person. What needs to be clear is that the above aspects all reflect the legislative concept of paying attention to human rights protection in search from different angles. At the same time, the legal provisions that directly safeguard the rights of the searched person will also inspire us:
(1) You should not search for materials within the scope of privileged protection. Respect private rights.
(2) When searching, the person being searched must be respected and his dignity should be maintained as much as possible. (Note: See Italian Criminal Procedure Law, translated by Huang Feng, China University of Political Science and Law Press, 1994, p. 84. )
(3) The searcher has the obligation to take all measures in advance to keep professional secrets and safeguard the right of defense. (Note: See French Criminal Procedure Law, translated by Yu Shu and Xie Chaohua, China University of Political Science and Law Press, 1997, p. 26. )
(4) If there are no suspicious items, issue a search result certificate. Article 1 19 of Japan's Criminal Procedure Law stipulates that if there are no exhibits or articles to be confiscated after the search, the proof in this respect shall be delivered at the request of the searched person. There is a similar provision in Article 107 of German Criminal Procedure Law, which shows the respect for the reputation right of the searched person.
(5) the right relief of the searched person. Item 5 of Article 4 1 of the Federal Criminal Procedure Rules of the United States stipulates that anyone who has been infringed by illegal search and seizure may file a motion with the local court to request that the evidence obtained by illegal search and seizure be excluded.
6. Clear the consequences of illegal search. The admissibility of evidence obtained through illegal search is reflected in the legislation of various countries to varying degrees. In the United States, evidence obtained through illegal searches in violation of the Fourth Amendment of the US Constitution is generally not accepted by the courts. However, in order to combat crime, four exceptions to the exclusion rule have been established in recent years through precedents: the exception of goodwill or goodwill, the exception of public safety, the exception of inevitable discovery and the exception of independent sources.
(Note: See Rules of Criminal Procedure in the United States edited by Li Xuejun, China Procuratorate Press, 2003, p. 48. In Britain, the decision whether to exclude illegal evidence is decided by the judge presiding over the trial, which is stipulated in Article 78 of the Police and Criminal Evidence Act of 1984. Germany takes the principle of balance as the standard to deal with it, that is, evidence obtained by violating personal dignity and personal freedom should be prohibited, but for major crimes, the former should give in; (Note: See Chen Guangzhong and [Canada] Daniel Prefontaine:
United Nations Criminal Justice Standards and China Criminal Legal System, Law Press, 1998, p. 265. According to the provisions of Article 19 1 of the Italian Criminal Procedure Law, all evidence obtained by illegal search has no evidential capacity.
Third, the path to improve China's criminal search system Because criminal litigation is a rational litigation activity between strong and weak countries, the design of any procedure can not be separated from the eternal topic of protecting the rights of defendants and preventing police, prosecutors and judges from abusing their power. As a kind of investigation, search involves citizens' constitutional rights such as personal, property and privacy, and its program design should be based on controlling the right of investigation and safeguarding human rights. At the same time, we should follow the inherent mode and law of litigation and resolve confrontation in a rational way unique to litigation procedures. Under the premise of following the above basic guiding ideology, the author thinks that we should learn from the general provisions of the two legal systems on search procedures and reconstruct the criminal search system in China. The specific ideas are as follows:
1. Introduce a judicial review mechanism, in principle, the judge decides to search and issue a search warrant. As mentioned above, judicial control of investigation power is a common practice in foreign criminal proceedings: the punishment decision involving citizens' basic rights should usually be made by judges to prevent the abuse of investigation power. Giving the judge the power of search decision is first to realize the balance of power and promote the protection of rights. In order to investigate crimes, investigators always expect to obtain criminal evidence through search. If it is not restricted and prevented, it is likely to lead to a flood of search and harm citizens' constitutional rights. Therefore, it should be a reasonable choice for investigators to apply, judges to examine their reasons and necessity, and to issue search warrants. Secondly, it is an inevitable requirement of procedural justice. As the strong party in the conflict, the decision of the investigation organ to search by itself violates the basic rules of procedural justice, that is, "how can a person's case not be his own judge", and the ruling on issues involving the vital rights and interests of citizens should be made by a neutral judge. In our country, some scholars advocate giving the procuratorial organs the right to approve searches in order to strengthen procuratorial supervision.
(Note: See Song Shijie and Liu Huang: A Preliminary Study of Criminal Search, Journal of Fujian Public Security College, No.2, 2003. In this regard, the author does not agree. In criminal proceedings, procuratorial organs represent the interests of the state, exercise the function of accusation, belong to the same interests as public security organs, and all take the prosecution of crimes as their own responsibility. The investigation supervision of procuratorial organs belongs to homogeneous supervision, which is far from the neutrality required by judicial review, and it is difficult to realize effective protection of human rights. According to the Criminal Procedure Law, judicial review can only be conducted by judges. To this end, a judicial review court can be set up in the people's court to review the legality of compulsory investigations such as searches. The examining judge specializes in judging, but only decides on major procedural issues and may not participate in the substantive trial of the case. In addition, exceptions to the principle of search warrant should be made clear. After all, the important task of investigation is to control crime. In case of legal emergency, public security organs and procuratorial organs may search first, but they should obtain the ratification authorization of the judge as soon as possible afterwards.
2. Make clear the substantive conditions of the search and strictly start the search procedure.
It is of great significance to clearly stipulate the substantive conditions of search in the criminal procedure law to ensure the correct application of search. In view of the fact that search is usually suitable for the initial stage of investigation and involves the protection of the basic rights of the person being searched, the conditions should not be too high or too low, and should include both aggravating conditions and evidence conditions.
(1) Search is applicable to cases that may be sentenced to more than fixed-term imprisonment. Compulsory search is not applicable to minor crimes, but it can be conducted with the consent of the searched person.
(2) The proof standard of search shall be clearly defined. Considering the hierarchical arrangement in the whole standard system of proof, it can be determined that "there is evidence to prove the possibility of detaining suspects or physical evidence" before people, articles or residences and other relevant places can be searched. If there is no certain evidence in advance to show the existence of this possibility, it is not allowed to search only on suspicion, speculation and the criminal record of the suspect. In fact, the process of the judge examining the search application and issuing the search warrant belongs to the procedural adjudication process. According to the principle of "where there is judgment, there is proof", this procedural judgment must be based on procedural proof. In the procedural proof activities around issuing search warrants, investigators bear the burden of proof. Therefore, when applying for a search, the criminal facts of the case, existing evidence and the relationship between the evidence and the searched person or place should be stated, so that the judge can be convinced that the suspects or criminal evidence related to the case may be found through the search.
3. Strengthen the specific requirements of search warrants and improve the procedural rules of search. According to the requirements of the principle of legal procedure, the criminal procedure law should refine the search procedure and strengthen it in the following aspects.
: (1) The search warrant shall specify the suspect's name, charges, place, body or articles to be searched. It is forbidden to search and detain places, people and articles unrelated to crime, except obscene articles, drugs, dangerous goods, precious cultural relics, animals and their products, rare plants and their products found by investigators on the spot.
(2) Define the validity period and execution time of the search warrant. The validity period of the search warrant should be 30 days, and the search cannot be conducted after the expiration, and a new application for issuing a search warrant is required; No duplicate search; The search should be carried out during the day. It is forbidden to search houses before 6 am and after 9 pm unless there is a legal emergency or a search incidental to arrest or detention.
(3) Inform the procedure clearly at the beginning of the search, so that the searched person can understand the intention of the investigators; Searches should be conducted in a civilized and legal manner, and the personal dignity of the searched person should be respected.
(4) stipulate the confidentiality obligations of searchers. It is strictly forbidden for searchers to disclose personal privacy or business secrets learned during the search, and judicial fines will be imposed on those who violate their obligations. If the circumstances are serious, legal responsibility may be investigated.
(5) In the absence of criminal suspects and relevant criminal evidence, the investigation organ shall issue a certificate to the searched person to eliminate the adverse effects. In addition, the law should clearly stipulate the circumstances of unlicensed search to prevent the arbitrariness of search.
4. Establish a procedural sanction mechanism for illegal search, so as to standardize the procedure of illegal search. Therefore, for any violation of the law, there should be a corresponding legal responsibility system, so that the offender will be punished by the corresponding law and deprived of the improper benefits obtained by violating the law, thus bearing negative legal consequences. "
(Note: Chen Ruihua: The System of Invalidation of Litigation Acts in Continental Law, published in Politics and Law Forum, No.5, 2003. )
Violation of substantive law is the same as violation of procedural law. Procedural sanctions against illegal search should start from two aspects: First, make clear the validity of the evidence obtained by illegal search, and establish the exclusionary rules of illegal evidence suitable for the reality of China. In our country, considering the need of crime control, it is unrealistic to completely exclude the evidence obtained by illegal search; The urgent task is to uphold the supremacy of the Constitution and exclude illegal evidence obtained by infringing citizens' constitutional rights, such as evidence obtained by searching without judicial authorization, evidence obtained by searching without clear reasons, evidence obtained by seriously infringing the major rights and interests of the searched person during the search, and so on. Second, through procedural adjudication, establish a procedural sanction mechanism for illegal search and implement the rule of excluding illegal evidence.
(1) The Criminal Procedure Law should give anyone who has been infringed by illegal search the right to request the court to exclude the evidence obtained by illegal search.
(2) The judge should hold a special hearing procedure involving both the prosecution and the defense to make a procedural judgment on whether there is an illegal search. In the procedural proof activities around the legitimacy and legality of the search, the principle of "inversion of burden of proof" should be implemented, that is, investigators should produce evidence to prove the legitimacy and legality of the search. If they fail to fulfill the burden of proof, they will have to bear the consequences of procedural sanctions in which illegal evidence is excluded.
Legal basis:
Criminal Procedure Law of the People's Republic of China
Article 110 A public security organ, a people's procuratorate or a people's court shall accept reports, complaints and reports. If it does not belong to its own jurisdiction, it shall be transferred to the competent authority for handling, and the informant, complainant and informant shall be notified; For those who are not under their jurisdiction and must take emergency measures, they should take emergency measures first and then transfer them to the competent department.
Article 136 In order to collect criminal evidence and arrest criminals, investigators may search the bodies, articles, residences and other relevant places of criminal suspects and people who may hide criminals or criminal evidence.