技术侦查程序规制

发布时间：2019-04-26 22:38

【摘要】：我国技术侦查完善的着眼点应在程序。程序之治下的技术侦查可以界定为：以保障人权与控制犯罪的动态平衡为规制技术侦查的总体理念；以有效控制为理念规制技术侦查的审批程序；以对隐私权的合理保护为理念规制技术侦查措施的地域、范围、种类；以必要性和适度性原则规制技术侦查的期限；以权力控制为理念规制技术侦查的程序性制裁。尽管大陆法系和英美法系有所不同,但法治国家都对技术侦查的适用范围、审批程序、时间、地点、期限、证据的使用、当事人救济的权利等方面作了严格的规定。我国技术性侦查的问题表现为技术侦查审批规定过于模糊,适用范围、种类不明确,适用期限过于宽泛,对适用地点无规定,程序性制裁有缺失,极易产生暗箱操作,侵犯公民的各项宪法性权利。就我国目前的国情和司法体制而言,由作为法律监督机关的检察机关审批技术侦查措施比较恰当。审批的主要内容是实施技术侦查活动有无必要性,其依据是什么,检察机关在批准侦查机关的请求后,要采用书面形式予以回复。关于技术侦查的使用期限,需要结合技术侦查措施的实际情况来规定,而不是统一规定为3个月。此外,实施技术侦查的规定期限届满“仍有必要”继续采取技术侦查措施的“可以延长”,必须明确规定延长的次数,延长次数以2次为宜。技术侦查的适用范围应该和法定刑统一起来,以3年有期徒刑(排除缓刑)为界作为严重侵害法益的标准。也就是说,技术侦查适用于有可能被判处3年以上有期徒刑的重大案件或紧急案件。在考虑技术侦查适用种类的问题时,我们不仅仅要结合犯罪类别、案情和嫌疑人的情况规定与之适应的技术侦查种类及手段,而且要考虑到法律的滞后性问题,制定一些在以后可以适用的技术侦查手段。我国应对侦查适用地点做出规定,例如严禁私自对嫌疑人的住宅进行技术侦查,在限制侦查地点后,能够防止出现滥用技术侦查权力的现象,从而更好地保障人权。如果没有按照法律限定的程序、要求来使用技术侦查措施导致公民的基本权利受到侵害,相关人员可以依法进行救济。除审批程序、实施程序外,还要设定一些制裁程序,即如果侦查机关没有按照规定采取技术侦查措施必须要承担一定的责任和后果,如停止和撤销诉讼,诉讼无效、排除非法证据、减轻处罚。
[Abstract]:The perfection of the technical investigation in our country should focus on the procedure. Technical investigation under the rule of procedure can be defined as: to protect human rights and control the dynamic balance of crime as the overall concept of regulation of technical investigation, to regulate the approval process of technical investigation with effective control as the concept, and to regulate the approval procedure of technical investigation based on the concept of effective control. The reasonable protection of the right to privacy is the concept to regulate the region, scope and types of technical investigation measures; to regulate the period of technical investigation with the principle of necessity and appropriateness; and to regulate the procedural sanctions of technical investigation with the idea of power control. Although there are some differences between the civil law system and the common law system, the countries ruled by law have made strict regulations on the scope of application of technical investigation, examination and approval procedure, time, place, time limit, use of evidence, the right of the parties to remedy and so on. The problems of technical investigation in our country are as follows: the regulation of examination and approval of technical investigation is too vague, the scope of application is not clear, the period of application is too broad, there is no regulation on the place of application, the procedural sanction is missing, and it is easy to operate in the dark box. Violation of the constitutional rights of citizens As far as the current situation and judicial system of our country are concerned, it is more appropriate for the procuratorial organ as the legal supervision organ to examine and approve the technical investigation measures. The main content of examination and approval is whether or not it is necessary to carry out technical investigation, and what is its basis. After approving the request of investigation organ, procuratorial organ should reply in writing. The term of use of technical investigation needs to be defined in combination with the actual situation of technical investigation measures, rather than a uniform provision of 3 months. In addition, "it is still necessary" to continue to take technical investigation measures "may be extended" at the expiration of the prescribed time limit for the implementation of technical investigation, and the number of extensions must be clearly specified, and the number of extensions should be taken twice. The scope of application of technical investigation should be unified with legal punishment, and the criterion of serious infringement of legal interests should be three-year fixed-term imprisonment (excluding probation). In other words, technical investigation is applicable to major cases or urgent cases that may be sentenced to imprisonment of more than three years. In considering the type of application of technical investigation, we should not only take into account the types and means of technical investigation to which the category of crime, the circumstances of the case and the circumstances of the suspect are appropriate, but also take into account the lag of the law. Develop some technical investigation techniques that can be applied in the future. China should make regulations on the applicable place of investigation, such as strictly forbidding the technical investigation of the suspect's residence, which can prevent the abuse of the power of technical investigation after restricting the investigation place, so as to better protect the human rights. If the basic rights of citizens are infringed by the requirement to use technical investigation measures according to the procedure limited by law, the relevant personnel can carry out relief in accordance with the law. In addition to the examination and approval procedure and the implementation procedure, some sanctions procedures should also be set up, that is, if the investigation organ fails to take technical investigation measures in accordance with the provisions, it must bear certain responsibilities and consequences, such as the suspension and revocation of the proceedings, and the proceedings shall be invalid. Rule out illegal evidence and reduce punishment.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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