侦查行为诉讼控制界域的思考

法律相对于侦查技术的滞后是不可避免的,因此诉讼程序对侦查行为的控制也总会出现“合理”失控现象。侦听、截获电讯、电子监控、秘密录像或拍照、诱惑侦查等技术手段在我国侦查中已经常性使用,立法中应做出回应。我国刑事诉讼法中将单纯发现案件事实作为立案的根据,但从发现案件事实到确定犯罪嫌疑人身份,侦查行为性质更接近于行政行为,将这一阶段的侦查行为完全纳入到诉讼控制界域,与诉讼程序的性质不符。

Considerations on the Landmark of Lawsuit's Procedural Control over Investigation

Comparatively speaking,it is inevitable for law to lag behind the development of investigation technology,and so the control of lawsuit's procedure over investigation will see the phenomenon that the control is always reasonably lost.Monitoring,intercepting and capturing,electronic monitoring,secret video-recording or picturing,seduced investigation and some other means have already been commonly employed in China's investigation,to which legislation should give appropriate response.Chinese criminal lawsuit takes the pure finding of facts as the basis for placing a case on file for investigation and prosecution,but from the finding of facts to the affirmation of the identity of suspects,the nature of investigation is closer to administration.To incorporate the investigation into the landmark of lawsuit's procedural control is not in accordance with the nature of lawsuit procedure.