【作者】 孙辉；

【导师】 闵春雷；

【作者基本信息】 吉林大学 ， 法律， 2008， 硕士

【摘要】 随着诱惑侦查这种特殊侦查手段使用的增多,也使得由此引发的各种矛盾凸显。由于我国现行立法和司法实践对此并没有一个具体明确的规定,因而在这种侦查手段实施起来会产生法律障碍,使用不当易导致一系列不良后果。为了能够尽量避免其在被实施过程中所产生的不良影响,同时最大效能地发挥其积极作用,本文通过对两大法系法治国家关于诱惑侦查的比较考察,赞同以主观为标准,将诱惑侦查分为“犯意诱发型”和“提供机会型”两种类型,并对这两种类型是否合法进行了剖析。在针对诱惑侦查的价值分析基础上,根据我国目前诱惑侦查手段所面临的现状,本文提出对诱惑侦查手段分别在实施前、实施过程中和实施后进行必要的法律规制构想,以保证诱惑侦查手段在国家法律允许的范围内进行正确而有效地实施,维护公民的合法权益。更多还原

【Abstract】 Encouragement investigation, as a special investigation method, has been accepted and adopted by more and more nations, including China, in judicial practice. However, the related laws and regulations concerned with this have not been put forward in China so far. Through the comparison of encouragement investigation in theories and practice of the countries with two different law systems, this paper intends to propose the schemes of necessary legal regulations from legislation on encouragement investigation before, within and after its implementation based on the contemporary encouragement investigation circumstance in China as well as the analysis of the positive and negative effects resulting from encouragement investigation.The paper falls into four chapters in structure:Chapter I focuses on the encouragement investigation practice in western nations ruled by laws. Development of encouragement investigation theories in nations with two different legal systems as a starting point, this chapter illustrates the feasibility of encouragement investigation means in the perspectives of Anglo-American law system and continental law system. First of all, US and Britain are selected as models for the countries with Anglo-American law system. In US, a series of cases lead to pretty mature“entrapment defense”theory. Supreme Court of the United States and majority of state courts in US emphasize the subjective standpoint, believing the key that identifies the legitimate encouragement investigation lies in whether the encouraged have the criminal intent, namely, the psychological tendency to commit a crime. On the contrary, few state courts and many scholars incline to the objective standards. Their standards rely on whether the encouragement behaviors are legitimate. If the presented encouraged behaviors beyond the usual encouragement scope in objectivity cause the criminal intent, which in turn, generates the cause-and-effect between the encouragement behaviors and criminal behaviors, the“entrapment defense”is concluded. As for Britain, British courts basically also take up the judgment criteria combining the subjective and objective factors. Secondly, as representatives of nations with the continental law system, Germany, France and Japan mainly restrain the encouragement investigation for legitimate purpose by formulating laws to regulate its conditions and procedure. Japan is a special case carrying both the characteristics of traditional continental law systems and those of American legal system because of the influences from American legal theories. In addition to the regulations upon encouragement investigation application from such written laws as“Narcotics Administration Law”, Japan attaches the importance to study the quintessence of American“entrapment defense”. Comparing the formations and progresses of encouragement investigation theories in chief countries ruled by laws, we can see that all countries make a conditional or limit use of encouragement investigation on the premise of accepting this investigation means so as to exploit it legitimately.Chapter II brings up the definition and basic types of enticement investigation. Scholars give different expressions to encouragement investigation. The encouragement investigation should be understood as“stimulation investigation”, which includes the above investigation trap in the conception. In general, the encouragement investigation refers to a special investigation means, for the purpose of collecting related criminal evidence to solve the occurred covert criminal case, which the national institutions of investigation rights design to induce a suspect into the crime or offer favorable opportunities and conditions upon the suspect’s criminal tendency so that the suspect is to be tempted, and consequently, controlled by the investigation institutions. Up to this, I prefer taking the subjective status of the encouraged before encouragement as the category standard. One type is the mode of“induce predisposition”, a means that the investigation institute enforces inducement to those without criminal intent to come up with such intent, and further implement the crime. Another type is the mode of“chance offering”, a means that the investigation institute offers favorable conditions and chances for a suspect’s crime on the ground of his existed criminal intent. Regarding the above two types, most countries takes a denial position in the mode of“induce predisposition”, also known as“trap”, while affirmative in the mode of“chance offering”.Chapter III talks about the positive values and negative effects of the encouragement investigation. Positive values of the encouragement investigation: Firstly, in terms of social values, the encouragement investigation takes on the prevention. Once a criminal intends, prepares for or acts on crimes, the investigation institute will take essential measures promptly to control and even crack down on the crime, minimizing the crime and maximizing the benefits of others and society. This is what to be believed the human-oriented fundamental intention that the investigation institute strikes against crimes. Secondly, with the regards of economic values, the encouragement investigation is able to solve a case in a timely manner with more simple procedure, which can raise the case-solving ratio, retrieve economic losses to the greatest extent in the shortest period, diminish the risks that the suspect let illicit money and booties out, reduce the cost by shrinking the resource waste and employ the limited assets into other investigations. Thirdly, from the perspective of social stability maintenance and effective fight against crimes, the encouragement investigation may shorten the case clearing-up time and promote the efficiency, restoring people’s lives and social order in the minimum time and safeguarding the legal rights of the litigant by exempting him from the criminal case investigation. This could play a positive role in establishing and consolidating the standing of the Party and the government, investigation institute in particular, in civilians’mind so as to maintain and stabilize the solidarity and peace of the society. Finally, seeing from self-values of criminal case investigation, the encouragement investigation is beneficial for locking the investigated target, around which the evidence is searched and for inducing the investigated target to implement another crime, which helps to get on-spot evidence for the crime disclosure. Negative effects of the encouragement investigation. First, it confronts the legislative spirit because its practice is weak in legal basis, both in the sense of the legislation and of the judicial lawsuit process. Second, it violates the basic citizen rights and contradicts with legislation gist. Third, it deviates from the constructed socialism value system, which may bring about the public’s digression and error towards values and furthermore, arouse the questioning to legal impartiality. Fourth, it may easily give rise to overuse which will endow the injustice be to the innocent and plunge the investigation institution as well the investigator into moral crisis. Finally, the legal barriers are witnessed in judicial practice with the evidence obtained from the encouragement investigation, and it is by no means easy to set up a standard to judge the legitimization of the encouragement investigation.Chapter IV concentrates on the legal regulations and the improvement of encouragement investigation. This chapter starts with the elaboration of the current status of encouragement investigation in China. In judicial practice, though the encouragement investigation has approximately been accepted by judicial organs as an investigation method to crack down the crimes, no formal admittance has been granted to this investigation way. Instead, since the encouragement investigation is“deceptive”in some degree and counters“Criminal Procedure Law”, we may see this investigation means is unacceptable by our laws. To shun this“illegal”behavior and according to its plentiful use in drug crimes, the Supreme Court issued a“Notification on Publishing and Distributing Summary of Nationwide Court Symposium on the Trial of Drug Crime Cases”at the beginning of 2000, which affirms the employment of the encouragement investigation against the drug crimes. Although this“idea”is a law item, nor a judicial interpretation, it is the first time that the“law-alike text”refers to the issue of encouragement investigation, and sequentially, has served as a major basis for the investigation institution exercising this means against the drug crimes. The chapter then gives a thorough illustration about the legal regulations and the improvement of the encouragement investigation. Facing the legal blank demonstrated by the encouragement investigation, I consider the task in priority is the affirmation of the encouragement investigation in the format of laws, criminal procedure law confining the encouragement investigation on the aspect of procedure law. Particular chapters and units should be formulated in the criminal procedure law about the encouragement investigation in terms of implementing body, applicability, target, behavior modes, procedure control and legal consequences to ensure the approval before the practice, monitor in the practice and inspection after the practice of encouragement investigation.更多还原