论监听的法律规制

发布时间：2019-06-22 10:41

【摘要】：进入21世纪以来,世界各国都面临着日益严峻的犯罪形势。不仅犯罪数量逐年递增,犯罪行为也越发呈现出组织化、智能化、隐蔽化的趋势。新型犯罪不断涌现,严重犯罪时有发生。对于新型犯罪以及部分严重犯罪,传统的侦查手段已经无法发挥原有的作用,刑事侦查活动面临严重困境。为了摆脱这一窘境,世界各国都不约而同地将希望寄托在了监听等特殊侦查手段上。监听是一种兼具秘密性与技术性的特殊侦查手段,与传统侦查手段相比,监听具有隐蔽和高效的优势,在刑事侦查过程中加以利用可以比较容易地获取相关证据。正因如此,各国侦查机关无不将监听奉为控制犯罪的“杀手锏”。然而,作为一种强制侦查措施,监听在发挥积极作用的同时,不可避免地将侵犯公民基本权利。美国、德国、日本等法治国家都依据一定的法律原则之要求对监听进行严格的法律规制,通过监听权的授予与限制,力求在犯罪打击和保障人权之间寻找平衡。在我国,监听措施属于国家秘密,不便在法律单独明确规定,立法者只得以“技术侦查”的名义对监听同其他技术侦查手段统一进行立法。长期以来,我国技术侦查法律制度主要由侦查机关对外严格保密的内部规定构成。直到2012年《刑事诉讼法》及相关司法解释的出台后,我国才形成了公开的技术侦查法律制度。然而相关法律规定仍然存在诸多缺陷,偏重于广泛授权,对于监听等技术侦查手段的限制不力。这也导致我国司法实践中滥用监听的现象时有发生,并渐成趋势。因此参照其它法治国家的监听立法经验,遵循法律保留原则、法官保留原则、比例原则和权利救济原则的要求,对我国监听立法进行修正和完善已迫在眉睫。
[Abstract]:Since the beginning of the 21 st century, all countries in the world are facing an increasingly serious crime situation. Not only the number of crimes is increasing year by year, but also the trend of organization, intelligence and concealment is becoming more and more obvious. New types of crime continue to emerge, and serious crimes occur from time to time. For the new crime and some serious crimes, the traditional investigation methods have been unable to play their original role, and the criminal investigation activities are facing serious difficulties. In order to get rid of this dilemma, all countries in the world place their hopes on special investigation techniques such as surveillance. Surveillance is a kind of special investigation means which has both confidentiality and technology. compared with the traditional investigation means, surveillance has the advantages of concealment and efficiency. It is easier to obtain relevant evidence by using it in the process of criminal investigation. Because of this, the investigation organs of all countries regard surveillance as the "killer mace" to control crime. However, as a compulsory investigation measure, surveillance will inevitably infringe on the basic rights of citizens while playing an active role. The United States, Germany, Japan and other countries ruled by law all strictly regulate surveillance according to certain legal principles, and strive to find a balance between crime cracking and human rights protection through the granting and restriction of the right to listen. In our country, the surveillance measure belongs to the state secret, which is inconvenient to specify separately in the law, so the legislator has to make legislation on the surveillance and other technical investigation means in the name of "technical investigation". For a long time, the legal system of technical investigation in our country is mainly composed of the internal provisions of strict confidentiality of the investigation organs. It was not until the introduction of Criminal procedure Law and related judicial interpretation in 2012 that China formed an open legal system of technical investigation. However, there are still many defects in the relevant legal provisions, focusing on extensive authorization, weak restrictions on technical investigation techniques such as surveillance. This also leads to the abuse of surveillance in judicial practice in our country from time to time, and gradually become a trend. Therefore, referring to the experience of surveillance legislation in other countries ruled by law, following the principle of legal reservation, the principle of judge reservation, the principle of proportion and the principle of right relief, it is urgent to amend and perfect the monitoring legislation of our country.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

【共引文献】