誘惑偵查制度探微
發(fā)布時(shí)間：2018-08-19 09:18
【摘要】： 誘惑偵查作為一種特殊的偵查手段，已為世界上許多國(guó)家立法和實(shí)踐所普遍認(rèn)可并廣泛運(yùn)用。即便如此，對(duì)誘惑偵查的使用一直存有爭(zhēng)議，國(guó)內(nèi)外許多學(xué)者和實(shí)務(wù)界人士對(duì)其合法性提出質(zhì)疑。在我國(guó)，誘惑偵查手段古已有之，現(xiàn)今用其偵破案件更是司空見(jiàn)慣，然而，我國(guó)刑事訴訟法律法規(guī)中卻缺乏相關(guān)的規(guī)定，導(dǎo)致實(shí)踐中的誤用、濫用，這與現(xiàn)代法治社會(huì)追求公正、保障人權(quán)的目標(biāo)相去甚遠(yuǎn)。本文擬從誘惑偵查的概念入手，探究其來(lái)源、辨析其術(shù)語(yǔ)、闡釋其分類、挖掘其特點(diǎn)、鑒別其利弊。通過(guò)對(duì)外國(guó)相關(guān)立法及實(shí)踐的介紹了解誘惑偵查制度演進(jìn)過(guò)程中的不同主張及理由，推知該制度的發(fā)展趨勢(shì)；通過(guò)對(duì)誘惑偵查制度全方位、多維度的分析，揭示其產(chǎn)生和存在的法理學(xué)基礎(chǔ)，探究在偵查中如何體現(xiàn)公正、秩序和效率的刑事訴訟價(jià)值以及如何實(shí)現(xiàn)打擊犯罪與保障人權(quán)的刑事訴訟目的。研究誘惑偵查制度的目的，就是要夯實(shí)該制度的理論根基，為我國(guó)的刑事訴訟立法提供強(qiáng)有力的理論支撐。 全文共分為四大部分。第一部分是誘惑偵查概述。首先，針對(duì)理論和實(shí)踐中對(duì)誘惑偵查稱謂不一的混亂狀況，對(duì)相關(guān)術(shù)語(yǔ)進(jìn)行了辯析，認(rèn)為，誘惑偵查（或稱誘餌偵查）與警察圈套（或稱偵查圈套、偵查陷阱）涵義不同，前者涵蓋了后者的內(nèi)容。在此基礎(chǔ)上，對(duì)誘惑偵查的概念作了界定：誘惑偵查是指為了偵破某些極具隱蔽性的特殊案件，偵查人員或其協(xié)助者，特意設(shè)計(jì)某種誘發(fā)犯罪的情境，或者根據(jù)犯罪活動(dòng)的傾向提供其實(shí)施犯罪的條件和機(jī)會(huì)，待犯罪嫌疑人進(jìn)行犯罪或自我暴露時(shí)當(dāng)場(chǎng)將其拘捕的一種特殊的偵查手段。其次，誘惑偵查作為歷史發(fā)展的產(chǎn)物，對(duì)該制度的由來(lái)作一簡(jiǎn)要的介紹。再次，為了對(duì)誘惑偵查作一個(gè)全面的認(rèn)識(shí)，本文按不同的標(biāo)準(zhǔn)對(duì)誘惑偵查進(jìn)行了不同的分類。其中，把誘惑偵查分為機(jī)會(huì)提供型和犯意誘發(fā)型兩種類型，此種分類對(duì)理論和實(shí)踐的意義更大。最后，將誘惑偵查與傳統(tǒng)偵查方式作了比較看出，誘惑偵查在具有眾多優(yōu)點(diǎn)的同時(shí)，也有自身難以克服的弊端。 第二部分介紹了誘惑偵查的有關(guān)論爭(zhēng)及其在各國(guó)的實(shí)踐。正是由于誘惑偵查制度是一把雙忍劍，利弊兼有，故對(duì)其的褒貶和爭(zhēng)論始終伴隨著它的發(fā)展。主張者強(qiáng)調(diào)誘惑偵查是現(xiàn)代社會(huì)同犯罪作斗爭(zhēng)的客觀需要，反對(duì)者強(qiáng)調(diào)政府只 WP=4 能預(yù)防與打擊犯罪，而不能制造犯罪，否則有違司法公正。世界各國(guó)將誘惑偵查制度廣泛運(yùn)用于司法實(shí)踐，并通過(guò)立法確認(rèn)其合法性地位，同時(shí)也規(guī)定了嚴(yán)格的限制性條件，這些都反映了政府在偵查犯罪的必要性與維持個(gè)人的法律安全之間尋求平衡的價(jià)值選擇。誘惑偵查在兩大法系國(guó)家的發(fā)展趨勢(shì)是：英美法系國(guó)家從放任到積極限制；大陸法系國(guó)家從否定到有限度的認(rèn)同。 第三部分為誘惑偵查的多維分析。既然世界各國(guó)都肯認(rèn)誘惑偵查的合法性，也就必有其存在的法理學(xué)基礎(chǔ)。本部分從不同的視角，對(duì)誘惑偵查進(jìn)行全方位的剖析，以便為我國(guó)立法確認(rèn)誘惑偵查制度奠定理論基礎(chǔ)。誘惑偵查的價(jià)值分析，是將誘惑偵查放在整個(gè)刑事訴訟的視野之中，在體現(xiàn)公正、秩序、效率這些價(jià)值目標(biāo)的前提下，更應(yīng)以公正、秩序作為優(yōu)先選擇。相應(yīng)地誘惑偵查的目的應(yīng)體現(xiàn)出公正、秩序優(yōu)先的價(jià)值選擇，同時(shí)要盡量使控制犯罪與保障人權(quán)的訴訟目的達(dá)到最大的平衡，以此為標(biāo)準(zhǔn)，機(jī)會(huì)提供型誘惑偵查的目的具有正當(dāng)性，，而犯意誘發(fā)型誘惑偵查的目的不正當(dāng)。通過(guò)對(duì)誘惑偵查合法性問(wèn)題上的幾種觀點(diǎn)進(jìn)行辯析，認(rèn)為，誘惑偵查有合法與違法之分，不能一概而論，所以，應(yīng)該確立警察圈套成立的科學(xué)標(biāo)準(zhǔn)：即應(yīng)將主觀標(biāo)準(zhǔn)與客觀標(biāo)準(zhǔn)綜合起來(lái)考慮。誘惑偵查的法律后果，主要是指對(duì)違法的誘惑偵查，所涉及的人員及獲取的有關(guān)證據(jù)應(yīng)如何處置的問(wèn)題。一般說(shuō)來(lái)，對(duì)違法誘惑偵查所實(shí)施的對(duì)象不能定罪或量刑時(shí)從輕，但也應(yīng)具體問(wèn)題具體分析。對(duì)于實(shí)施不當(dāng)誘惑偵查的相關(guān)責(zé)任人員應(yīng)當(dāng)追究相應(yīng)的民事、行政及刑事責(zé)任。對(duì)于違法誘惑偵查取得的證據(jù)，從保障人權(quán)和司法公正的角度來(lái)說(shuō)，應(yīng)當(dāng)排除。 第四部分著重探討了在我國(guó)確立誘惑偵查制度的立法構(gòu)想。首先，從為了適應(yīng)日益多變的犯罪形勢(shì)出發(fā)，分析了我國(guó)確認(rèn)誘惑偵查合法性地位的緊迫性和必要性。其次，在確立和適應(yīng)誘惑偵查制度時(shí)，應(yīng)堅(jiān)持平衡原則、權(quán)衡原則和法制國(guó)家程序原則。平衡原則要求誘惑偵查必須符合適合性原則、必要性原則和相適性原則等三項(xiàng)子原則的要求；權(quán)衡原則體現(xiàn)了誘惑偵查中個(gè)人利益的適當(dāng)犧牲去維護(hù)國(guó)家和社會(huì)的根本利益和長(zhǎng)遠(yuǎn)利益；法制國(guó)家程序原則要求將誘惑偵查從實(shí)體和程序兩個(gè)方面都納入法制的軌道。具體到我國(guó)誘惑偵查的制度設(shè)計(jì)，主要包括以下內(nèi)容：誘惑偵查的主體只能是由法律授權(quán)的偵查主體以及他們事先的委托人實(shí)施；適用誘惑偵查的多是那些隱蔽性無(wú)被害人的案件，可以采用列舉方式加以規(guī)定；借鑒世界上其他國(guó)家的標(biāo)準(zhǔn)，我國(guó)必須應(yīng)以已經(jīng) WP=5 有證據(jù)證明可能實(shí)施犯罪的公民為誘惑偵查的適用對(duì)象，偵查機(jī)關(guān)不得隨意進(jìn)行；誘惑偵查的行為方式應(yīng)禁止高度誘惑性的手段，只限于提供一種中立性的一般機(jī)會(huì)；誘惑偵查的程序控制主要包括偵查的審批程序和監(jiān)督程序，以便對(duì)誘惑偵查行為進(jìn)行有效的監(jiān)督與制約；誘惑偵查的救濟(jì)機(jī)制主要從辯護(hù)的角度
[Abstract]:As a special means of investigation, temptation investigation has been widely recognized and applied in legislation and practice in many countries in the world. Even so, the use of temptation investigation has been controversial, and many scholars and practitioners at home and abroad have questioned its legitimacy. It is common to solve cases, however, the lack of relevant provisions in China's criminal procedure laws and regulations leads to misuse and abuse in practice, which is far from the goal of pursuing justice and safeguarding human rights in a modern society ruled by law. Through the introduction of foreign relevant legislation and practice, we can understand the different propositions and reasons in the evolution of the temptation investigation system, and infer the development trend of the system; through the comprehensive and multi-dimensional analysis of the temptation investigation system, we can reveal the jurisprudential basis of its emergence and existence, and explore how to embody justice and rank in the investigation. The value of order and efficiency in criminal procedure and how to realize the purpose of combating crime and safeguarding human rights are discussed in this paper.
The first part is an overview of the enticement investigation. Firstly, in view of the confusion of the different appellations of the enticement investigation in theory and practice, the relevant terms are analyzed. It is believed that the meaning of the enticement investigation (or bait investigation) is different from that of the police trap (or investigation trap, investigation trap). The former covers the content of the latter. On this basis, the concept of seductive investigation is defined: seductive investigation refers to the investigation of some very concealed special cases, investigators or their assistants, deliberately designed to induce a crime situation, or according to the tendency of criminal activities to provide the conditions and opportunities for the implementation of the crime, waiting for the suspect to commit a crime or self-determination. Secondly, as a product of historical development, the enticement investigation makes a brief introduction to the origin of the system. Thirdly, in order to make a comprehensive understanding of the enticement investigation, this paper classifies the enticement investigation according to different standards. There are two types of temptation investigation, namely, offering investigation and inducing crime intention. This classification is of greater significance to theory and practice. Finally, comparing temptation investigation with traditional investigation, it is found that temptation investigation has many advantages, but also has its own insurmountable disadvantages.
The second part introduces the controversy about the temptation investigation and its practice in various countries.It is precisely because the temptation investigation system is a double-forbearance sword with both advantages and disadvantages that its praise and disparagement are always accompanied by its development.The advocates emphasize that the temptation investigation is the objective need of the modern society to fight against crime and the opponents emphasize that the government should only fight against crime.
WP=4
It is against judicial justice to prevent and crack down on crime, but not to create it. Countries all over the world have widely applied the system of temptation investigation to judicial practice, and confirmed its legitimacy through legislation. At the same time, they have stipulated strict restrictive conditions, which reflect the necessity of government investigating crime and maintain personal legal security. The trend of temptation investigation in the two legal systems is from laissez-faire to active restriction in the Anglo-American law system countries and from negation to limited identification in the civil law system countries.
The third part is the multi-dimensional analysis of the temptation investigation.Since all countries in the world are willing to admit the legality of the temptation investigation,there must be its jurisprudence foundation.This part carries on the omni-directional analysis to the temptation investigation from the different angle of view,in order to lay the theoretical foundation for the legislation confirmation of the temptation investigation system in our country.The value analysis of the temptation investigation is. On the premise of presenting the value objectives of justice, order and efficiency, we should give priority to justice and order. Correspondingly, the purpose of temptation investigation should embody the value choice of justice and order priority, and at the same time, we should try our best to achieve the purpose of controlling crime and protecting human rights. On the basis of this criterion, the purpose of the temptation investigation by providing opportunities is legitimate, while the purpose of the temptation investigation by inducing criminal intent is improper. The legal consequences of temptation investigation mainly refer to the problem of how to deal with the persons involved in the investigation and the relevant evidence obtained. Generally speaking, the object of illegal temptation investigation can not be convicted or sentenced lightly. Specific problems should be analyzed concretely. Persons responsible for the improper enticement investigation should be investigated for civil, administrative and criminal responsibilities. Evidence obtained from illegal enticement investigation should be excluded from the perspective of protecting human rights and judicial justice.
The fourth part focuses on the legislative conception of establishing the system of temptation investigation in China. Firstly, in order to adapt to the ever-changing crime situation, the urgency and necessity of confirming the legitimacy of temptation investigation in China are analyzed. Secondly, when establishing and adapting the system of temptation investigation, we should adhere to the principle of balance, the principle of balance and France. Principle of Home Procedure: Balance Principle requires that enticement investigation must conform to the requirements of the three sub-principles of suitability, necessity and suitability; Balance Principle embodies the appropriate sacrifice of individual interests in enticement investigation to safeguard the fundamental interests and long-term interests of the state and society; Principle of State Procedure in the rule of law requires enticement investigation. The entity and procedure of investigation are both brought into the orbit of the legal system. Specifically, the system design of temptation investigation in our country mainly includes the following contents: the subject of temptation investigation can only be carried out by the investigating subject authorized by law and their principal in advance; the cases which are applicable to temptation investigation are mostly concealed cases without victims, and so on. It should be specified by enumeration, and by reference to the standards of other countries in the world, our country must have
WP=5
If there is evidence that the citizen who may commit a crime is the applicable object of temptation investigation, the investigating organ shall not do so arbitrarily; the behavior of temptation investigation shall prohibit highly tempting means and be limited to providing a neutral general opportunity; the procedural control of temptation investigation mainly includes the procedure of examination and approval and the procedure of supervision so as to facilitate the investigation. Effective supervision and restriction on the temptation investigation; relief mechanism of temptation investigation mainly from the perspective of Defense
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2003
【分類號(hào)】：D918
[Abstract]:As a special means of investigation, temptation investigation has been widely recognized and applied in legislation and practice in many countries in the world. Even so, the use of temptation investigation has been controversial, and many scholars and practitioners at home and abroad have questioned its legitimacy. It is common to solve cases, however, the lack of relevant provisions in China's criminal procedure laws and regulations leads to misuse and abuse in practice, which is far from the goal of pursuing justice and safeguarding human rights in a modern society ruled by law. Through the introduction of foreign relevant legislation and practice, we can understand the different propositions and reasons in the evolution of the temptation investigation system, and infer the development trend of the system; through the comprehensive and multi-dimensional analysis of the temptation investigation system, we can reveal the jurisprudential basis of its emergence and existence, and explore how to embody justice and rank in the investigation. The value of order and efficiency in criminal procedure and how to realize the purpose of combating crime and safeguarding human rights are discussed in this paper.
The first part is an overview of the enticement investigation. Firstly, in view of the confusion of the different appellations of the enticement investigation in theory and practice, the relevant terms are analyzed. It is believed that the meaning of the enticement investigation (or bait investigation) is different from that of the police trap (or investigation trap, investigation trap). The former covers the content of the latter. On this basis, the concept of seductive investigation is defined: seductive investigation refers to the investigation of some very concealed special cases, investigators or their assistants, deliberately designed to induce a crime situation, or according to the tendency of criminal activities to provide the conditions and opportunities for the implementation of the crime, waiting for the suspect to commit a crime or self-determination. Secondly, as a product of historical development, the enticement investigation makes a brief introduction to the origin of the system. Thirdly, in order to make a comprehensive understanding of the enticement investigation, this paper classifies the enticement investigation according to different standards. There are two types of temptation investigation, namely, offering investigation and inducing crime intention. This classification is of greater significance to theory and practice. Finally, comparing temptation investigation with traditional investigation, it is found that temptation investigation has many advantages, but also has its own insurmountable disadvantages.
The second part introduces the controversy about the temptation investigation and its practice in various countries.It is precisely because the temptation investigation system is a double-forbearance sword with both advantages and disadvantages that its praise and disparagement are always accompanied by its development.The advocates emphasize that the temptation investigation is the objective need of the modern society to fight against crime and the opponents emphasize that the government should only fight against crime.
WP=4
It is against judicial justice to prevent and crack down on crime, but not to create it. Countries all over the world have widely applied the system of temptation investigation to judicial practice, and confirmed its legitimacy through legislation. At the same time, they have stipulated strict restrictive conditions, which reflect the necessity of government investigating crime and maintain personal legal security. The trend of temptation investigation in the two legal systems is from laissez-faire to active restriction in the Anglo-American law system countries and from negation to limited identification in the civil law system countries.
The third part is the multi-dimensional analysis of the temptation investigation.Since all countries in the world are willing to admit the legality of the temptation investigation,there must be its jurisprudence foundation.This part carries on the omni-directional analysis to the temptation investigation from the different angle of view,in order to lay the theoretical foundation for the legislation confirmation of the temptation investigation system in our country.The value analysis of the temptation investigation is. On the premise of presenting the value objectives of justice, order and efficiency, we should give priority to justice and order. Correspondingly, the purpose of temptation investigation should embody the value choice of justice and order priority, and at the same time, we should try our best to achieve the purpose of controlling crime and protecting human rights. On the basis of this criterion, the purpose of the temptation investigation by providing opportunities is legitimate, while the purpose of the temptation investigation by inducing criminal intent is improper. The legal consequences of temptation investigation mainly refer to the problem of how to deal with the persons involved in the investigation and the relevant evidence obtained. Generally speaking, the object of illegal temptation investigation can not be convicted or sentenced lightly. Specific problems should be analyzed concretely. Persons responsible for the improper enticement investigation should be investigated for civil, administrative and criminal responsibilities. Evidence obtained from illegal enticement investigation should be excluded from the perspective of protecting human rights and judicial justice.
The fourth part focuses on the legislative conception of establishing the system of temptation investigation in China. Firstly, in order to adapt to the ever-changing crime situation, the urgency and necessity of confirming the legitimacy of temptation investigation in China are analyzed. Secondly, when establishing and adapting the system of temptation investigation, we should adhere to the principle of balance, the principle of balance and France. Principle of Home Procedure: Balance Principle requires that enticement investigation must conform to the requirements of the three sub-principles of suitability, necessity and suitability; Balance Principle embodies the appropriate sacrifice of individual interests in enticement investigation to safeguard the fundamental interests and long-term interests of the state and society; Principle of State Procedure in the rule of law requires enticement investigation. The entity and procedure of investigation are both brought into the orbit of the legal system. Specifically, the system design of temptation investigation in our country mainly includes the following contents: the subject of temptation investigation can only be carried out by the investigating subject authorized by law and their principal in advance; the cases which are applicable to temptation investigation are mostly concealed cases without victims, and so on. It should be specified by enumeration, and by reference to the standards of other countries in the world, our country must have
WP=5
If there is evidence that the citizen who may commit a crime is the applicable object of temptation investigation, the investigating organ shall not do so arbitrarily; the behavior of temptation investigation shall prohibit highly tempting means and be limited to providing a neutral general opportunity; the procedural control of temptation investigation mainly includes the procedure of examination and approval and the procedure of supervision so as to facilitate the investigation. Effective supervision and restriction on the temptation investigation; relief mechanism of temptation investigation mainly from the perspective of Defense
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2003
【分類號(hào)】：D918
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