论刑事搜查与隐私权的冲突与平衡
发布时间：2018-11-28 19:16
【摘要】：随着现代社会国家公权力的不断扩张以及涉及领域的急剧拓宽,公民隐私权越来越受到国家公权力的侵扰。作为宪法基本权利的隐私权是公民追求自由安定的一种价值判断,作为侦查手段之一的刑事搜查是国家追诉犯罪,保障社会安全稳定必要措施,于是出现了隐私权保护和刑事搜查之间价值和现实冲突问题。如何平衡侦查活动追求犯罪的需求与公民隐私权的最大限度的保护,便成为我们必须要解决的难题。通过分析隐私权的内涵和范围,我们发现隐私权内涵具有的广阔性,它不仅包括人身隐私权、财产隐私、住宅隐私权,还包括各式多样新型的科技信息隐私权。信息时代我们的侦查手段不断发展创新,如网络搜查手段的出现,甚至为了应对多发的严重的犯罪,秘密侦查手段也被规定在了刑事诉讼法之中。正是信息时代的发展,搜查手段的不断创新以及隐私权范围的不断扩大,使得本来就交织的隐私权保护和刑事搜查制度之间变得更加错综复杂,因此需要我们分析双方的价值侧重点。无论是刑事搜查所追求的安全和公正及效率,还是隐私权偏重的人格尊严和自由价值,都是我们需要把握和尊重的基本价值。从哲学层面来看,这些价值之间是矛盾的两个方面,它们之间是对立统一的,并在一定条件下是可以相互转换的；同时刑事诉讼法也是这多种价值之间相互让渡的产物,是多种价值的结合体,因此可以说隐私权保护与刑事搜查权之间是可以通过价值衡量、制度的设计得到双方利益平衡的,既达到隐私权保护的最大限度的目的,又能很好的实现刑事搜查的立法目的。为了实现平衡,需要我们明确双方之间平衡的几大原则,其一就是能够实现双方价值平衡的利益衡量原则及其内涵下的比例原则,确立利益衡量原则是保障双方平衡的利益基础；程序法定原则、令状主义原则等均为我们下面的刑事搜查的制度设计打下了良好的基础。本文通过对两者的平衡过程进行分析把握和讨论,对隐私权保护和刑事搜查权之间的利益的让渡进行了程序设计,主要包括对有证搜查和无证搜查的完善建议的多种内部平衡方法,还包括非法证据排除、对非法搜查的惩戒以及国家赔偿等的几种外部平衡方法,实现了从内外两个层面对刑事搜查进行限制的目的。这样的制度设计一方面为刑事搜查的顺利进行提供了制度保障,另一方面也为隐私权提供最大程度的保护,从而最终实现隐私权保护和刑事搜查之间的平衡。
[Abstract]:With the expansion of public power in modern society and the rapid expansion of related fields, the right to privacy of citizens is more and more disturbed by the public power of the state. As the basic right of constitution, the right of privacy is a kind of value judgment for citizens to pursue freedom and stability. As one of the means of investigation, criminal search is a necessary measure for the state to prosecute the crime and ensure the social security and stability. Thus appeared the privacy protection and the criminal search between the value and the realistic conflict question. How to balance the demand of criminal investigation and the maximum protection of citizen's right of privacy has become a difficult problem that we must solve. By analyzing the connotation and scope of the right of privacy, we find that the connotation of the right of privacy is broad. It includes not only the right to personal privacy, the privacy of property, the right to privacy of residence, but also the various kinds of new types of privacy of scientific and technological information. In the information age, our investigative techniques are constantly developing and innovating, such as the appearance of network search techniques, and even in order to deal with the frequent serious crimes, secret investigative techniques are also stipulated in the Criminal procedure Law. It is the development of the information age, the constant innovation of search means and the expansion of the scope of privacy, which make the intertwined protection of privacy and criminal search system become more complicated. Therefore, we need to analyze the value of both sides of the focus. Whether it is the security, justice and efficiency pursued by the criminal search, or the value of personal dignity and freedom, which is emphasized by the right of privacy, is the basic value that we need to grasp and respect. From the philosophical point of view, these values are two aspects of contradiction, they are unity of opposites, and under certain conditions can be converted; At the same time, the Criminal procedure Law is also the product of the mutual transfer of these various values and the combination of many values. Therefore, it can be said that the protection of privacy and the right to criminal search can be measured by value, and the system is designed to obtain a balance of interests between both sides. Not only to achieve the maximum protection of privacy purposes, but also to achieve the legislative purpose of criminal search. In order to achieve balance, we need to clarify several major principles of balance between the two sides. One is the principle of balancing the interests of both sides and the principle of proportionality under the connotation of the balance of value between the two sides. The establishment of the principle of interest measurement is the interest basis to ensure the balance between the two sides. The principle of legal procedure and the principle of writ have laid a good foundation for the system design of criminal search. Through the analysis and discussion of the process of balance between the two, this paper designs the procedure of transferring the interests between the protection of privacy and the right of criminal search. It mainly includes a variety of internal balance methods proposed to perfect the search with and without a warrant, including the exclusion of illegal evidence, the punishment of illegal search and several external balance methods of state compensation, etc. It realizes the purpose of restricting the criminal search from inside and outside. On the one hand, the system design provides the system guarantee for the smooth conduct of criminal search, on the other hand, it also provides the greatest degree of protection for the right to privacy, so as to achieve the balance between the protection of privacy and the criminal search.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
，
本文编号：2364019
[Abstract]:With the expansion of public power in modern society and the rapid expansion of related fields, the right to privacy of citizens is more and more disturbed by the public power of the state. As the basic right of constitution, the right of privacy is a kind of value judgment for citizens to pursue freedom and stability. As one of the means of investigation, criminal search is a necessary measure for the state to prosecute the crime and ensure the social security and stability. Thus appeared the privacy protection and the criminal search between the value and the realistic conflict question. How to balance the demand of criminal investigation and the maximum protection of citizen's right of privacy has become a difficult problem that we must solve. By analyzing the connotation and scope of the right of privacy, we find that the connotation of the right of privacy is broad. It includes not only the right to personal privacy, the privacy of property, the right to privacy of residence, but also the various kinds of new types of privacy of scientific and technological information. In the information age, our investigative techniques are constantly developing and innovating, such as the appearance of network search techniques, and even in order to deal with the frequent serious crimes, secret investigative techniques are also stipulated in the Criminal procedure Law. It is the development of the information age, the constant innovation of search means and the expansion of the scope of privacy, which make the intertwined protection of privacy and criminal search system become more complicated. Therefore, we need to analyze the value of both sides of the focus. Whether it is the security, justice and efficiency pursued by the criminal search, or the value of personal dignity and freedom, which is emphasized by the right of privacy, is the basic value that we need to grasp and respect. From the philosophical point of view, these values are two aspects of contradiction, they are unity of opposites, and under certain conditions can be converted; At the same time, the Criminal procedure Law is also the product of the mutual transfer of these various values and the combination of many values. Therefore, it can be said that the protection of privacy and the right to criminal search can be measured by value, and the system is designed to obtain a balance of interests between both sides. Not only to achieve the maximum protection of privacy purposes, but also to achieve the legislative purpose of criminal search. In order to achieve balance, we need to clarify several major principles of balance between the two sides. One is the principle of balancing the interests of both sides and the principle of proportionality under the connotation of the balance of value between the two sides. The establishment of the principle of interest measurement is the interest basis to ensure the balance between the two sides. The principle of legal procedure and the principle of writ have laid a good foundation for the system design of criminal search. Through the analysis and discussion of the process of balance between the two, this paper designs the procedure of transferring the interests between the protection of privacy and the right of criminal search. It mainly includes a variety of internal balance methods proposed to perfect the search with and without a warrant, including the exclusion of illegal evidence, the punishment of illegal search and several external balance methods of state compensation, etc. It realizes the purpose of restricting the criminal search from inside and outside. On the one hand, the system design provides the system guarantee for the smooth conduct of criminal search, on the other hand, it also provides the greatest degree of protection for the right to privacy, so as to achieve the balance between the protection of privacy and the criminal search.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
，
本文编号：2364019
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