论控制下交付的法律规制
发布时间：2018-08-23 15:08
【摘要】：跨国毒品犯罪日益严重,愈演愈烈,面对这一形势,1988年联合国通过了《联合国禁止非法贩运麻醉药品和精神药品公约》,首次以国际公约的形式承认并规定了控制下交付这一特殊的侦查手段。2012年,随着新《刑事诉讼法》的出台,我国也正式承认了控制下交付手段的合法性,使得这一手段在我国得以合法使用。 控制下交付手段为侦查侦破较有难度的案件提供了重大帮助,可以有效查明和遏制犯罪,但它也属于秘密侦查措施的范畴,这不免会侵犯到利益相关方的很多权益,而且控制下交付制度新入律,许多具体的规定并不完善,因此必须采取有效的规制手段防止权力滥用。本文共分为五个部分： 第一部分探讨了控制下交付的概念界定。首先对控制下交付概念进行了探讨,从主体、前提、对象、适用范围和使用目的五个方面进行分析,得出了控制下交付的概念。其次,分析了控制下交付的三个属性；第二部分对控制下交付手段进行了价值分析,这一部分采取了利弊分析法,首先分析了使用控制下交付的风险,再分析控制下交付的价值所在,从而说明控制下交付存在的合理性和必要性；第三部分主要论述了控制下交付在国际上的运用。首先讲述了控制下交付的起源和发展,然后重点论述了三个国际公约对控制下交付的规制,并分别列举了美国、日本和澳大利亚三个国家的控制下交付制度的立法现状及其对控制下交付制度的规制；第四部分分析了我国控制下交付制度存在的问题。首先评价我国控制下交付制度的立法现状,得出控制下交付入律是新《刑事诉讼法》立法的一大进步,同时也存在诸多问题的结论。其次,具体分析了我国控制下交付制度存在的问题,比如适用范围不明确、缺乏相应的审批和监督机制等等；第五部分从控制下交付和秘密侦查以及技术侦查的关系、控制下交付适用范围和条件、程序设计和证据材料的规范使用四个角度论述完善我国控制下交付制度法律规制的构想,争取从制度设计上将控制下交付所产生的负面作用控制在最小的范围内。
[Abstract]:Transnational drug crimes are becoming more and more serious. Faced with this situation, in 1988 the United Nations adopted the United Nations Convention against illicit Traffic in Narcotic drugs and psychotropic substances, recognizing and providing for the special investigative techniques of controlled delivery in the form of international conventions for the first time. In 2012, With the introduction of the new Criminal procedure Law, our country has also officially recognized the legality of the means of controlled delivery, which makes the means legally used in our country. The means of controlled delivery provide significant assistance in the investigation and detection of more difficult cases, which can effectively identify and contain crimes, but they also fall within the scope of secret investigative measures, which inevitably infringe on many rights and interests of the stakeholders. And the new regulation of the controlled delivery system, many specific provisions are not perfect, so we must take effective regulatory measures to prevent abuse of power. This paper is divided into five parts: the first part discusses the definition of the concept of controlled delivery. Firstly, the concept of controlled delivery is discussed, and the concept of controlled delivery is obtained from five aspects: subject, premise, object, scope of application and purpose of use. Secondly, it analyzes the three attributes of controlled delivery. The second part analyzes the value of the means of controlled delivery, which adopts the analysis of advantages and disadvantages. Firstly, it analyzes the risk of using controlled delivery. The value of controlled delivery is analyzed and the rationality and necessity of the existence of controlled delivery are explained. The third part mainly discusses the international application of controlled delivery. First, the origin and development of controlled delivery are described, then the regulation of controlled delivery in three international conventions is discussed, and the United States is listed respectively. The current legislative situation of the controlled delivery system in Japan and Australia and its regulation on the control delivery system. The fourth part analyzes the problems existing in the controlled delivery system in China. Firstly, this paper evaluates the current legislative situation of the controlled delivery system in China, and draws a conclusion that the controlled delivery law is a great progress in the legislation of the new Criminal procedure Law, and at the same time, there are many problems. Secondly, it analyzes the problems existing in the system of controlled delivery in China, such as the unclear scope of application, the lack of corresponding examination and approval and supervision mechanism, etc. The fifth part discusses the relationship between controlled delivery, secret investigation and technical investigation. The scope and conditions of application of controlled delivery, the design of procedure and the standard use of evidential materials are discussed in four aspects: the idea of perfecting the legal regulation of the system of controlled delivery in China. Try to control the negative effect of controlled delivery to the minimum from the system design.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2199440
[Abstract]:Transnational drug crimes are becoming more and more serious. Faced with this situation, in 1988 the United Nations adopted the United Nations Convention against illicit Traffic in Narcotic drugs and psychotropic substances, recognizing and providing for the special investigative techniques of controlled delivery in the form of international conventions for the first time. In 2012, With the introduction of the new Criminal procedure Law, our country has also officially recognized the legality of the means of controlled delivery, which makes the means legally used in our country. The means of controlled delivery provide significant assistance in the investigation and detection of more difficult cases, which can effectively identify and contain crimes, but they also fall within the scope of secret investigative measures, which inevitably infringe on many rights and interests of the stakeholders. And the new regulation of the controlled delivery system, many specific provisions are not perfect, so we must take effective regulatory measures to prevent abuse of power. This paper is divided into five parts: the first part discusses the definition of the concept of controlled delivery. Firstly, the concept of controlled delivery is discussed, and the concept of controlled delivery is obtained from five aspects: subject, premise, object, scope of application and purpose of use. Secondly, it analyzes the three attributes of controlled delivery. The second part analyzes the value of the means of controlled delivery, which adopts the analysis of advantages and disadvantages. Firstly, it analyzes the risk of using controlled delivery. The value of controlled delivery is analyzed and the rationality and necessity of the existence of controlled delivery are explained. The third part mainly discusses the international application of controlled delivery. First, the origin and development of controlled delivery are described, then the regulation of controlled delivery in three international conventions is discussed, and the United States is listed respectively. The current legislative situation of the controlled delivery system in Japan and Australia and its regulation on the control delivery system. The fourth part analyzes the problems existing in the controlled delivery system in China. Firstly, this paper evaluates the current legislative situation of the controlled delivery system in China, and draws a conclusion that the controlled delivery law is a great progress in the legislation of the new Criminal procedure Law, and at the same time, there are many problems. Secondly, it analyzes the problems existing in the system of controlled delivery in China, such as the unclear scope of application, the lack of corresponding examination and approval and supervision mechanism, etc. The fifth part discusses the relationship between controlled delivery, secret investigation and technical investigation. The scope and conditions of application of controlled delivery, the design of procedure and the standard use of evidential materials are discussed in four aspects: the idea of perfecting the legal regulation of the system of controlled delivery in China. Try to control the negative effect of controlled delivery to the minimum from the system design.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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