诱惑侦查的正当性研究

Abstract

Temptation has been detected in ancient times. It is generally believed thattemptation investigation originated before and after the bourgeois revolution incontinental Europe, and then gradually evolved to that in order to crack the case, theinvestigators and their assistants used some profitable behavior as a bait, suggestingor a special investigative means that induces the investigator to commit a criminalact and arrest the tempted person after the criminal act is committed or the criminalresult occurs. The state has enacted laws to give investigative organs the right toinvestigate, to collect evidence, punish crimes, and protect the interests of the people. Temptation investigation has the incomparable advantages of traditional investigationmethods. The law allows the investigation organs to use temptation investigation todetect such special crimes within certain limits. The external value of temptation investigation, that is, the benign role of the valueof the tool is obvious: on the one hand, it has economic benefits; on the other hand,it has the high speed and high efficiency of investigation work. However, in intrinsicvalue, its disadvantages are prominent, reflected in the issue of legality. Whether thetemptation investigative behavior has laws to follow, is strictly enforced, and violatesthe human rights are inconsistent, and temptation investigation faces an embarrassingsituation that cannot be used or abused. The basic concept of the Criminal Procedure Law emphasizes that both punishmentof crime and protection of human rights are equally important. The conflict betweenpunishment and protection of human rights is manifested here as a conflict betweeninvestigation and morality. It is power conflict. In combating crime and maintainingsocial stability, the two are “joining together”; in human rights protection, the two inevitably have conflicts. To make temptation investigations useful, practical, legal,and reasonable, we can only give a dynamic criterion, that is, prohibit excessiverules. First, legislative provisions and judicial practice do not deny the existence anduse of temptation investigation. What we have to master is only the degree. Degreeis the unified scope of quality and quantity, and it is the limit, range and scope ofthe quantity that guarantees its quality. The degree of temptation to detect existence and use is a matter of legitimacy andrationality. How the investigators use temptation to detect the case within the scopepermitted by law, is the primary consideration of prohibiting the excessive principle. Second, the use of temptation to detect cannot exceed the minimum that a socialmorality can tolerate. An important reason for the public’s resistance to temptationinvestigation is that their privacy and security will be in an unstable state. This is insharp contrast to the surveillance system. Finally, temptation investigation usually hasa process. Undercover and informants will face many conflicts and temptations, lawsand consciences, and how to enable investigators to control themselves, investigateaccording to law and stick to the moral bottom line in the process of temptationinvestigation.