技术侦查权配置研究
发布时间：2018-10-24 21:17
【摘要】：2012年新刑诉法修正案在第二编第二章专门增加了一节“技术侦查措施”，标志着广受关注的技术侦查正进一步纳入法治轨道，相信随着我国法治建设事业的进一步推进，技术侦查的立法会更加完善。虽然此次刑诉法修正案对技术侦查进行了规制，但还有很多不够完善的地方，，比如公安机关技术侦查自己决定自己执行的问题、检察机关是否应该拥有技术侦查决定权的问题。本文试图通过对技术侦查主体的设置、权限的划分、监督制度三个方面对我国技术侦查权的配置问题进行论述，同时考察借鉴了外国技术侦查权配置的法律规范。 笔者在本文的写作过程中使用了比较研究法、理论联系实际法、演绎归纳法等写作方法。 本文正文共分为五个部分，约三万字。 第一部分是技术侦查权配置概述，该部分对技术侦查权配置的基本问题进行了考察。一是，考察了技术侦查的概念、特征和种类以及与秘密侦查和侦查技术的区分。二是，考察了技术侦查权配置的概念和内容，总结出技术侦查权配置的内容包括技术侦查权的归属、设定权力范围与规范权力行使、对技术侦查权的控制三个方面。 第二部分是外国技术侦查权配置的法律规范，该部分考察分析了部分外国技术侦查权配置的法律规范。首先论述了德国和法国两个典型的大陆法系国家技术侦查权配置的法律规范。然后论述了英国和美国两个典型的英美法系国家技术侦查权配置的法律规范。最后论述了传统上属于大陆法系但同时借鉴了英美法系规则的日本和意大利国家技术侦查权配置的法律规范。 第三部分是我国技术侦查主体的设置，该部分主要论述了两个方面的内容。一方面，论述了技术侦查主体设置的三个原则：国家最高权力机关设置原则、必要性原则、资源有效利用原则。另一方面，论述了我国关于技术侦查主体的法律规范。 第四部分是我国技术侦查权限的划分，该部分对公安机关和检察机关技术侦查权限存在的问题及争议进行了详细的分析和总结。公安机关同时拥有技术侦查的决定权和执行权，这种自己审批自己执行的现状急需改变，由检察机关进行提前审批是一个很好的解决方法。刑诉法修正案没有赋予检察机关技术侦查的执行权引起了很大的争议，但从我国司法体制和侦查实践来看，笔者支持刑诉法修正案的相关规定，不应该赋予检察机关技术侦查的执行权。 第五部分是我国技术侦查权的监督，该部分考察了我国技术侦查监督制度的应然状态。对于如何建立我国的技术侦查监督制度，笔者建议要建立主要依靠检察机关的司法监督、配合其他监督措施的监督制度。
[Abstract]:The 2012 amendment of the new Criminal procedure Law has added a special section on "Technical investigation measures" in part two, Chapter II, which indicates that the technical investigation, which has received wide attention, is being further brought into the track of the rule of law. It is believed that with the further development of the cause of rule of law in our country, The legislative council of technical investigation is more perfect. Although the amendment of the Criminal procedure Law regulates the technical investigation, there are still a lot of imperfect places, such as the problem that the public security organs decide their own execution and whether the procuratorial organ should have the decision of the technical investigation. This paper attempts to discuss the allocation of the technical investigation power in China from three aspects: the setting of the subject of technical investigation, the division of the authority and the supervision system, and at the same time, the author studies and draws lessons from the legal norms of the allocation of the technical investigation power in foreign countries. In the process of writing, the author uses the method of comparative research, the method of combining theory with practice, the method of deductive induction and so on. This text is divided into five parts, about 30,000 words. The first part is an overview of the configuration of technical investigation power. First, it examines the concept, characteristics and types of technical investigation and its differentiation from secret investigation and investigative techniques. Secondly, the concept and content of the configuration of the technical investigation power are investigated, and the contents of the configuration of the technology investigation power are summarized, including the ownership of the technical investigation power, the establishment of the scope of the power and the regulation of the exercise of the power, and the control of the technical investigation power. The second part is the legal norms of the allocation of foreign technological investigation power, which examines and analyzes the legal norms of some foreign technological investigation power allocation. First, it discusses the legal norms of the allocation of technical investigation power in two typical civil law countries of Germany and France. Then it discusses the legal norms of the allocation of technical investigation power in two typical Anglo-American law countries: Britain and the United States. Finally, it discusses the legal norms of the allocation of the technical investigation power in Japan and Italy, which belong to the continental law system and draw lessons from the Anglo-American law system at the same time. The third part is the establishment of the subject of technical investigation in China, this part mainly discusses two aspects of the content. On the one hand, it discusses three principles of the establishment of the subject of technical investigation: the principle of setting up the state's highest authority, the principle of necessity, and the principle of effective utilization of resources. On the other hand, it discusses the legal norms of the subject of technical investigation in China. The fourth part is the division of the authority of technical investigation in our country. This part makes a detailed analysis and summary of the problems and disputes existing in the authority of technical investigation of public security organs and procuratorial organs. The public security organs have the power to decide and execute the technical investigation at the same time. The present situation of examining and approving their own execution urgently needs to be changed. It is a good solution for procuratorial organs to carry out the examination and approval in advance. The amendment to the Criminal procedure Law has not given the procuratorial organs the executive power of technical investigation, but from the point of view of our judicial system and investigation practice, the author supports the relevant provisions of the amendment to the Criminal procedure Law. Procuratorial organs should not be given the executive power of technical investigation. The fifth part is the supervision of technical investigation power in China. As to how to establish the supervision system of technical investigation in our country, the author suggests that the supervision system should mainly rely on the judicial supervision of procuratorial organs and cooperate with other supervision measures.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2292581
[Abstract]:The 2012 amendment of the new Criminal procedure Law has added a special section on "Technical investigation measures" in part two, Chapter II, which indicates that the technical investigation, which has received wide attention, is being further brought into the track of the rule of law. It is believed that with the further development of the cause of rule of law in our country, The legislative council of technical investigation is more perfect. Although the amendment of the Criminal procedure Law regulates the technical investigation, there are still a lot of imperfect places, such as the problem that the public security organs decide their own execution and whether the procuratorial organ should have the decision of the technical investigation. This paper attempts to discuss the allocation of the technical investigation power in China from three aspects: the setting of the subject of technical investigation, the division of the authority and the supervision system, and at the same time, the author studies and draws lessons from the legal norms of the allocation of the technical investigation power in foreign countries. In the process of writing, the author uses the method of comparative research, the method of combining theory with practice, the method of deductive induction and so on. This text is divided into five parts, about 30,000 words. The first part is an overview of the configuration of technical investigation power. First, it examines the concept, characteristics and types of technical investigation and its differentiation from secret investigation and investigative techniques. Secondly, the concept and content of the configuration of the technical investigation power are investigated, and the contents of the configuration of the technology investigation power are summarized, including the ownership of the technical investigation power, the establishment of the scope of the power and the regulation of the exercise of the power, and the control of the technical investigation power. The second part is the legal norms of the allocation of foreign technological investigation power, which examines and analyzes the legal norms of some foreign technological investigation power allocation. First, it discusses the legal norms of the allocation of technical investigation power in two typical civil law countries of Germany and France. Then it discusses the legal norms of the allocation of technical investigation power in two typical Anglo-American law countries: Britain and the United States. Finally, it discusses the legal norms of the allocation of the technical investigation power in Japan and Italy, which belong to the continental law system and draw lessons from the Anglo-American law system at the same time. The third part is the establishment of the subject of technical investigation in China, this part mainly discusses two aspects of the content. On the one hand, it discusses three principles of the establishment of the subject of technical investigation: the principle of setting up the state's highest authority, the principle of necessity, and the principle of effective utilization of resources. On the other hand, it discusses the legal norms of the subject of technical investigation in China. The fourth part is the division of the authority of technical investigation in our country. This part makes a detailed analysis and summary of the problems and disputes existing in the authority of technical investigation of public security organs and procuratorial organs. The public security organs have the power to decide and execute the technical investigation at the same time. The present situation of examining and approving their own execution urgently needs to be changed. It is a good solution for procuratorial organs to carry out the examination and approval in advance. The amendment to the Criminal procedure Law has not given the procuratorial organs the executive power of technical investigation, but from the point of view of our judicial system and investigation practice, the author supports the relevant provisions of the amendment to the Criminal procedure Law. Procuratorial organs should not be given the executive power of technical investigation. The fifth part is the supervision of technical investigation power in China. As to how to establish the supervision system of technical investigation in our country, the author suggests that the supervision system should mainly rely on the judicial supervision of procuratorial organs and cooperate with other supervision measures.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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