中美人身搜查制度比较研究
发布时间：2018-10-30 14:46
【摘要】：人身搜查作为重要的侦查手段,与公民的自由权、隐私权等宪法性权利密切相关,因此在惩罚犯罪和保障人权两种价值观下如何寻求平衡,一个国家的刑事人身搜查制度的规定十分重要。美国作为英美法系的代表国家,对人身搜查制度的规定具体而且详细,尤其在保护人权方面更是十分重视。我国的刑事诉讼法在立法层面对人身搜查制度的规定不完善,实践中人身搜查的问题又很多,这不利于侦查机关在打击犯罪的同时保障人权。本文将介绍中美两国不同的现行刑事人身搜查制度,并做出比较,对我国的人身搜查制度进行反思,借鉴美国的人身搜查制度的先进可取之处,提出对我国人身搜查制度的改革和完善。 本文的第一部分将对刑事搜查程序进行简单介绍,包括搜查程序的概念、性质以及分类。本文的第二部分将对中国的人身搜查制度的立法和实践现状进行介绍,分析并反思其在立法规定、程序设计、人权保障、司法实践等方面上存在的不足和不完善之处。本文的第三部分对美国的人身搜查制度进行介绍,介绍其宪法基础、法律依据和搜查权来源,并重点对美国人身搜查的具体实施细则进行介绍,尤其是无证搜查和非法搜查的法律后果。本文的第四部分是对中国和美国的人身搜查制度进行比较考察,主要针对搜查的决定机关、搜查的对象、搜查的范围、无证搜查的情形以及非法搜查的法律后果等方面进行比较,得出二者的在上述方面不同之处以及部分相同之处。本文的最后一部分将对中国的人身搜查制度提出程序、制度上的构想,在借鉴美国完善的人身搜查制度的同时,结合中国的法律和国情,对我国人身搜查程序、对象、范围等方面进行具体规定,使得侦查人员在行使人身搜查权时可以依照完善的法律程序,并对非法搜查的后果进行制裁性规定。
[Abstract]:As an important investigative technique, personal search is closely related to the constitutional rights of citizens' right to freedom and privacy, so how to strike a balance between punishing crime and safeguarding human rights. The provisions of a country's criminal body search system are very important. As a representative country of Anglo-American law system, the United States has specific and detailed provisions on the system of personal search, especially on the protection of human rights. The criminal procedure law of our country has not perfect the regulation of the personal search system at the legislative level, and there are many problems in the practice of the personal search, which is not conducive to the investigation organ to protect the human rights while cracking down on the crime. This paper will introduce the different criminal personal search systems between China and the United States, and make a comparison, reflect on the personal search system of our country, and draw lessons from the advanced and desirable aspects of the personal search system in the United States. This paper puts forward the reform and perfection of the personal search system in our country. The first part of this paper will briefly introduce the criminal search procedure, including the concept, nature and classification of the search procedure. The second part of this paper will introduce the current situation of legislation and practice of the system of personal search in China, analyze and reflect on its shortcomings and imperfections in the aspects of legislation, procedure design, human rights protection, judicial practice and so on. The third part of this paper introduces the system of personal search in the United States, introduces its constitutional basis, legal basis and the source of the power of search, and focuses on the introduction of the specific implementation details of the personal search in the United States. In particular, the legal consequences of undocumented and illegal searches. The fourth part of this paper is a comparative study of the system of personal search in China and the United States. It mainly focuses on the organs determining the search, the object of the search, and the scope of the search. By comparing the situation of undocumented search and the legal consequences of illegal search, the differences and some similarities between them are obtained. The last part of this paper will put forward the procedure of the personal search system in China, the conception of the system, while drawing lessons from the perfect personal search system in the United States, combining with the laws and conditions of China, the procedure of the personal search in China, the object, Scope and other aspects of specific provisions, so that investigators in the exercise of personal search power can be in accordance with the perfect legal procedures, and illegal search of the consequences of sanctions.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.2;D971.2
[Abstract]:As an important investigative technique, personal search is closely related to the constitutional rights of citizens' right to freedom and privacy, so how to strike a balance between punishing crime and safeguarding human rights. The provisions of a country's criminal body search system are very important. As a representative country of Anglo-American law system, the United States has specific and detailed provisions on the system of personal search, especially on the protection of human rights. The criminal procedure law of our country has not perfect the regulation of the personal search system at the legislative level, and there are many problems in the practice of the personal search, which is not conducive to the investigation organ to protect the human rights while cracking down on the crime. This paper will introduce the different criminal personal search systems between China and the United States, and make a comparison, reflect on the personal search system of our country, and draw lessons from the advanced and desirable aspects of the personal search system in the United States. This paper puts forward the reform and perfection of the personal search system in our country. The first part of this paper will briefly introduce the criminal search procedure, including the concept, nature and classification of the search procedure. The second part of this paper will introduce the current situation of legislation and practice of the system of personal search in China, analyze and reflect on its shortcomings and imperfections in the aspects of legislation, procedure design, human rights protection, judicial practice and so on. The third part of this paper introduces the system of personal search in the United States, introduces its constitutional basis, legal basis and the source of the power of search, and focuses on the introduction of the specific implementation details of the personal search in the United States. In particular, the legal consequences of undocumented and illegal searches. The fourth part of this paper is a comparative study of the system of personal search in China and the United States. It mainly focuses on the organs determining the search, the object of the search, and the scope of the search. By comparing the situation of undocumented search and the legal consequences of illegal search, the differences and some similarities between them are obtained. The last part of this paper will put forward the procedure of the personal search system in China, the conception of the system, while drawing lessons from the perfect personal search system in the United States, combining with the laws and conditions of China, the procedure of the personal search in China, the object, Scope and other aspects of specific provisions, so that investigators in the exercise of personal search power can be in accordance with the perfect legal procedures, and illegal search of the consequences of sanctions.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.2;D971.2
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