(Thanks to Han Guoqiang, member of the presidium and deputy secretary-general of the Beijing Fengtai District Calligraphers Association and member of the Central Education Committee of the China Democratic League for the inscription)
Guo Zhilong | Lecturer, School of Criminal Justice, China University of Political Science and Law, Researcher, Institute of Internet Law; Law, University of Glasgow, UK PhD.
ranked first in the province in 2010 (480 points) and passed the judicial examination. His academic interests include cybercrime law, electronic search law, and artificial intelligence law.
has published more than 40 articles in Legal Studies and "Legal and Social Development", "Legal Science", "Politics and Law", "Contemporary Law", "Legal Forum", " Law Journal ", "Oriental Jurisprudence" and other publications, and "College Liberal Arts Academic Digest" ""National People's Congress Photocopied Newspaper and Periodical Materials" reprinted 5 articles.
twice provided expert materials for the United Nations Intergovernmental Group of Experts on Cybercrime meetings, participated in live commentaries on the CCTV English News Channel, and was interviewed by reporters from " People's Daily " and "Finance" many times.
presided over the Beijing Social Science Fund Project and the Beijing Law Society’s research projects, and participated in 7 national, provincial and ministerial level scientific research projects.
"Journal of China University of Political Science and Law" 2021 Issue 2 is newly released. Thank you to Mr. Guo for authorizing the new media of "Judicial Lantinghui" to be published first.
The problem of unreasonable and unclear conditions for the exercise of the police’s power of interrogation requires urgent systematic reflection. Judging from the practical evolution of typical historical origins, common law countries have gradually focused on rationalizing and clarifying the conditions for the exercise of police power; while the unclear and unreasonable problems in China's legislative norms and law enforcement cases have systematically exploded.
In terms of academic theory, Chinese scholars plan to turn the "suspect of crime" stipulated in the legislation into reasonable suspicion of crime, which increases clarity and rationality, but there is still the problem of the static standard; American scholars have proposed a felony standard and even reasonable suspicion and elements of immediate threat, but whose relationship patterns are ambiguous.
Taking into account the clarity and rationality of the conditions for the exercise of the right of interrogation requires a systematic approach: in terms of clarity, the "dual-track model" of preventing crimes against persons and investigating persons for crimes and the "three points of interrogation, inspection and detention" should be fully considered link"; in terms of rationality, proportional "three-sided coordination" of specific crimes, civil rights and police safety should be carried out, and "three-element considerations" of seriousness, possibility and urgency should be carried out.
The systematic improvement of the framework, processes and principles of the conditions for the exercise of the right of interrogation is the "frontier" for the legitimate exercise of state coercive power. It has a profound effect in the new era of China's rule of law and requires interdisciplinary thinking.
Keywords: Interrogation - Search - Detention; Prevention - Strike - Protection; Possible harm; Possibility of harm; Urgency of harm
"Interrogation is the police agency's continued interception and arrest of suspicious persons and suspicious places. The act of interrogation, inspection, and inspection.” [[1]] Interrogation in its connotation includes interrogation and inspection, and in a broad sense, it also includes subsequent interrogation by the public security organs, that is, the act of detention. Article 9 of the superior law "Police Law" passed in 1995 is unreasonable and unclear, causing a series of theoretical and practical problems.
The standardization of the exercise of police interrogation power has both theoretical and practical significance. Theoretically, the right to interrogate is a contentious issue in jurisprudence, criminal procedure law, administrative law, public security and other disciplines. [[2]] In practice, the rights of interrogation, inspection, and continued interrogation stipulated in Article 9 of the Police Law go to two extremes: “the normalization of interrogation and retention” and “the virtualization of interrogation and retention” [[3]].
In May 2016, the 24th meeting of the Central Leading Group for Comprehensively Deepening Reforms adopted the "Opinions on Deepening the Standardization of Public Security Law Enforcement", emphasizing "focusing on improving the operating mechanism of public security law enforcement power" and requiring "standardization of law enforcement behavior", Correspondingly, the rationalization and clarification of the conditions for the exercise of the police's power of interrogation is an important link. However, the "Detailed Rules for Law Enforcement of Public Security Organs (Third Edition)", which was reviewed and approved at the subsequent executive meeting of the Ministry of Public Security, although it is 300,000 words long, is still limited to the first part "Handling Criminal Cases" and the second part "Handling Administrative Cases". The interrogation behavior between the administrative investigation process and the criminal investigation process has not been covered.
At the end of 2016, the Ministry of Public Security released the "People's Police Law" (revised draft) on its official website to solicit public opinions. In the autumn of 2018, the Standing Committee of the 13th National People's Congress announced the legislative plan for its term. The new "People's Police Law" is a "draft law that requires urgent work and will be submitted for review when conditions are ripe." At the end of 2018, the Criminal Procedure Law was revised again and did not clearly stipulate the police’s criminal investigation power.
In the past one or two decades, crises over the legitimacy of state coercion have occurred one after another in different regions, but China's rule of law construction is still full of hope. In the current climate of tightening political and legal environment, public authorities should turn crises into opportunities and update the concepts and systems of legislators, law enforcers, judiciaries, and the public at the "forward positions" where state coercive power is exercised, such as police investigation power. Improve and protect the rationality and reputation of police law enforcement.
This article does not provide a clear and reasonable "ultimate answer" for the conditions for the exercise of the police's right to interrogate. [[4]] However, it will strive to integrate the principle of proportionality in constitutional administrative law, crime risk judgment in criminal law, and public security law. Based on the consideration of police efficiency, we systematically and effectively outline the principles, framework and processes for regulating the exercise of the right to interrogate. We believe that on this basis, pragmatic and timely interaction between the academic community and the practical community will be a promising path.
1. The practical scene of clarifying and rationalizing police (interrogation) powers
The historical and realistic ambiguity of "order maintenance" makes this function equated to the police's interrogation, search and arrest of suspicious and unwelcome people under the public order law. Indwelling offensive surveillance capabilities. 〔[5]〕The object of exercising the right of interrogation is suspicious circumstances, and the typical historical origin of suspicious circumstances is the preventive criminalization of stay and wandering behaviors and the practical evolution of procedural interrogation rights. The behavior of sojourn and wandering has experienced the process of gradually gaining a broader free space at home and abroad, which calls for and corresponds to the update of theoretical arguments.
1. A three-dimensional presentation of the problem of unclear and unreasonable police investigation powers in China
China’s legislation seems to be soft and does not clearly treat the act of staying as a crime. The "Measures for the Accommodation and Repatriation of Urban Vagabonds and Beggars" implemented from 1982 to 2003 stipulates compulsory accommodation and repatriation. Within the province, they are generally deported within 10 days, and outside the province, they are generally deported within one month. In addition, serious overdue deportation will seriously infringe upon the deportation. The personal rights of citizens and the right to move are restricted, and citizens are under the control of state agencies, which greatly increases the risk of personal infringement of citizens and the liability risk of state agencies.
In 1991, the State Council's "Opinions on the Reform of the Custody and Repatriation Work" expanded the detention targets to the "Three Nos" (no legal documents, no fixed residence, and no stable income), that is, those without ID cards, temporary residence permits, and work permits. Itinerant personnel. Citizens with non-local registered permanent residence who have stayed for more than 3 days are required to apply for a temporary residence permit. Otherwise, they are staying illegally and will be detained and deported.
As a result, almost every citizen can be interrogated for the purpose of checking whether they have identity documents. Because the "Three Nos" seem to be more suspicious, more evasive, and more in line with the "suspects of illegal crimes" stipulated in Article 9 of the "Police Law" passed in 1995, this is likely to expand the scope of law enforcement targets, a tragedy that shocked both China and the world. This is how the "Sun Zhigang Incident" happened.〔[6]〕
This kind of thinking of random interrogation (identity documents) is far-reaching and harmful. Legal issues can be revealed from qualitative research on typical cases.
For example, the "Yang Jia Police Attack Case" in Shanghai in 2007 originated from the interrogation dialogue: "Why are you, a law enforcement officer, investigating me?" "Then do you have the obligation to tell your name?" "There are so many people on the road, why are you singled out? Me? “Let’s come one by one, please get off the car and submit to police investigation and show your bicycle credentials. "[[7]] The policeman generally believes that citizens have the obligation to explain and prove their identity, and believes that they can conduct large-scale inspections or arbitrary inspections in accordance with the law. What is more serious is that the responding agency also believes that his actions are legal. Even if the local It is stipulated that riding a bicycle must have a license plate. Regardless of the rationality of the regulation at the time and now, there should be no questioning if there is no objective and reasonable basis to suspect that the item is stolen, let alone the exercise of the right of lien.
In 2003, Jia, a postdoctoral fellow, was arrested for riding a bicycle without an ID card. The Shanghai Public Security Bureau did not confirm that the detention was illegal after administrative reconsideration, but the court ruled that the detention was illegal: "The identity of the plaintiff was not found out in a timely manner, and the approval procedures for the detention and interrogation were not completed." [[8]]
And in 2016. In the case of a shopping girl in Shenzhen who was interrogated, the police said: "I still doubt you are a man, why the hell are you going to the women's restroom"; "I suspect you are a criminal, you must follow me to the police station" [[9]] The policeman said. The content of the suspicion was arbitrarily fabricated to demonstrate the abuse of the "suspected of committing a crime" in Article 9 of the Police Law (the suspicion had no specific target). What's more serious is that the police call operator was not surprised by this, and moreover. The director of the bureau believed that the case "caused harm to people. In addition to being uncivilized, it also humiliated the personality" and completely failed to realize the harm of random interrogation and detention.
If there is a dispute over the legal interpretation of the interrogation behavior: "It is suspected of illegal crimes. "It may just be the subjective understanding of the law enforcement officers and does not require objective evidence, or it may only require "suspicious behavior" [[10]]; then, this case is completely undisputed and does not meet the retention conditions: "(1) Accused There is a criminal act; (2) There is a suspicion of committing a crime at the scene; (3) There is an unknown identity suspected of committing a crime; (4) The items carried may be stolen goods. "The two shopping girls in this case obviously did not have any of the above circumstances that warrant continued cross-examination. In fact, the investigators did not claim so. Therefore, this case is a blatant illegal act that directly infringes on citizens' rights to personal freedom.
In 1999, the Supreme People's Procuratorate on "Regulations on the Standards for Filing Cases Directly Accepted by the People's Procuratorate for Investigation and Investigation (Trial Implementation)" stipulates that if state agency staff use their powers to illegally detain others and are suspected of illegally depriving others of their personal freedom for more than 24 hours, they should file a case and pursue criminal liability. Although this case did not reach 24 hours. However, it should be severely punished in accordance with the provisions of the "Public Security Administration Punishment Law" on illegal detention. This case is by no means a matter of uncivilized law enforcement details in the process of moving from the end of the twentieth century to a "civilized" modern country (the middle of this century). , the tolerance for infringement of personal freedom will be and should be substantially reduced.
Furthermore, if the conditions for continued interrogation are accurately applied, the lamentable "Lei Yang case" in Beijing [[11]] will also be a tragedy for the police and the people. It is very likely that it will not happen: the only reason for continued interrogation in this case is the suspected illegal act of on-site prostitution, but the suspicion can still be eliminated through on-site interrogation and even search.
Article 9 of the Ministry of Public Security’s "Regulations on the Applicability of Continuing Interrogation" stipulates that the following persons shall be detained. Continuing interrogation shall not apply to persons under any of the following circumstances: (1) Those who have violated public security management or are suspected of committing crimes, but have not been interrogated or inspected on the spot; (2) After on-site interrogation and inspection, the suspicion of violating public security management and committing crimes has been eliminated; (4) Arrested from his or her residence or place of work, or otherwise summoned or detained in accordance with the law; (6) Knowingly knowing that the case he is involved in has been accepted as a public security case.These items are almost enough to rule out the possibility that Lei Yang was taken into a car and taken elsewhere, thereby avoiding serious infringement of civil rights and serious liability risks of state agencies due to personal injury or death.
The above cases are indeed enough to highlight that the police are not well-trained in the exercise of the power of interrogation. Therefore, it is indeed necessary to "use more educational methods to strengthen the police's need to follow the principle of proportionality as a guide when enforcing the law." However, it is by no means "in "More education" is enough to comply with current laws. 〔[12]〕
The unclear and unreasonable problem of police interrogation power in China’s legislation and law enforcement practice presents systemic deficiencies in static text and dynamic law enforcement. Through multi-point blasting in time periods and regions, it highlights the front-line police, public security The indifference and confusion of the director and public opinion has reached a time when the academic community must conduct systematic thinking to provide clear and reasonable solutions for the practice of the rule of law to protect the legitimate rights of citizens.
2. Typical scenes of rationalization and clarification of the conditions for the exercise of police power in common law countries
In common law countries, the act of staying is an important object of preventive criminalization. In order to prevent crime, certain behaviors of staying are treated as crimes, and this precisely contains the conditions for the exercise of the police's power of interrogation.
England in 1981 [[13]] canceled the offense of suspicious persons or habitual thieves frequently appearing or staying in specific places with the intention of committing a felony (felony) stipulated in Section 4 of the Vagrancy Act 1824 [[14]]. Such stay may reasonably lead to the commission of other offences.
In Ireland, the Law Commission recommended that the offense of staying with intent to commit a crime should no longer be enacted. [[15]] However, Article 4 still retains the offense of staying as a preparatory crime: "Any person found to be in or on any house, warehouse, stable, outhouse, or any enclosed yard or area , for any illegal purpose.”
For the repealed provisions, the perpetrator must be a suspicious person or a habitual thief, and the conduct must be frequent or lingering in a specific place with the intent to commit a felony, while for the retained provisions, the conduct must be It is an illegal act committed in a restricted place. Different focuses are emphasized: perpetrator or place; felony or illegal purpose. But both lead to substantial penalties. Among these acts, the objective perpetrator or behavioral circumstances are sufficient to initiate the exercise of procedural inspection rights to determine their intentions. However, in the first stage of the interrogation, the specific method of conducting the interrogation still needs to be discussed.
New Zealand appears to have a general offense of staying: being found in a public place and acting in a manner that would reasonably lead to an intention to commit an imprisonable offense. [[16]] So how to make a reasonable inference? It is a specific offense to be found in or on a building, enclosed area or conveyance in the country without reasonable excuse. [[17]]
Technically, this general crime and specific crimes are direct preventive legislation that configures substantive penalties. However, in circumstances that do not raise suspicions of criminal intent by the police, a warning may simply be given to leave, with refusal to leave resulting in a fine. [[18]] Technically, this is an indirect, procedural prevention. The procedural requirement is to stop staying. This requirement is backed by a substantive penalty, and the infringement of civil rights is much smaller than direct criminalization.
AustraliaNorthern Territory legislation indicates that staying should be treated more clearly and gently:
(1) Anyone who stays in a public place and cannot reasonably explain himself when the police ask for an explanation shall obey the order when the police ask him to stop staying, Otherwise, a fine of not more than 2,000 yuan and imprisonment of not more than 6 months shall be imposed, either alone or concurrently;
(2) Staying in a public place, the police believe on reasonable grounds that a crime has been or is likely to occur, and pedestrians or vehicles are being or are about to be If the person or those nearby are obstructing, the safety of the person or those nearby is being threatened, or the person is interfering with the reasonable use of the public place by others, the person may be required to stop staying and remove items under his or her control from the place. , the same punishment as above for disobedience.
These regulations only stipulate the power of interrogation, but do not stipulate the power of search or even detention. The first paragraph stipulates a general punishment for insisting on staying without a reasonable explanation. However, it is not clear how the perpetrator's explanation is satisfactory. This ambiguity can lead to the police interrogating the perpetrator and then ordering the behavior at will. People leave.
United States focuses on the clarity of interrogating behavioral conditions. California once punished wandering on the streets or between locations without apparent reason or business, refusing to identify oneself and explain one's presence if the surrounding circumstances indicated that a reasonable person would believe that public safety would require such an explanation. [[19]] Its legal practice has clear guidance on when to require identification of identity, but the standard for how to judge that the perpetrator has stated his or her identity is not clear, so it is deemed to be unconstitutional and vague legislation. [[20]] Now, his stay is limited to delaying or lingering in a building without a legitimate purpose, with the intention of committing a crime when the opportunity arises. [[21]]
On the contrary, Chicago stipulates that when criminal street gang members engage in gang loitering with others in public places, if they disobey police orders, they will not reappear in the pre-designated place for the next 8 hours. , is a crime. [[22]] This crime was intended to ensure the mobility and circulation of the city. It had been revised and now has specific specifications to meet the due process requirements of the Constitution, that is, to achieve legal clarity. [[23]] The once stipulated "being in a place without an apparent purpose" gave the police "absolute discretion to determine what activities constituted a stay." 〔[24]〕The current scheme can withstand unconstitutional challenges of vague, arbitrary and overbroad provisions.
However, judicial review only relies on the due process clause to require legal clarity and defeat vague criminalization legislation; it does not touch on the substantive legitimacy of criminalization. But the new law stipulates in advance how authorities can designate specific locations as areas for police patrols to investigate the crime. Areas of the city must be designated because a reasonable person would believe that the purpose or effect of the gang's loitering behavior is to enable criminal street gangs to establish control of those areas, to intimidate others from entering, or to conceal illegal activities. It can be seen that the Chicago legislation has evolved from the specific judgment of individual police officers to deport "without obvious purpose" to the rational determination of deportable areas in advance, avoiding the generalization and abuse of police power of deporting (and interrogating) at will throughout the city.
The two most important fronts for the police to maintain order are: further clarifying the concept of "public order" as their ultimate goal; and clarifying the tactics they should adopt to achieve this goal. [[25]] The above overview and picture of the evolution of criminal law and public security law regulations on stay in common law countries do not directly highlight the conditions for the exercise of interrogation, search, and lien powers, but they highlight the police power in typical historical scenes. With continuous rationalization and clarification, the country gradually pays attention to and reduces the infringement of citizens' rights, and the clarity of power restrictions is improved. This is a historical trend and reality. "Unclear means invalid" is generally recognized by criminal law theory and judiciary in various countries. [[26]]
Clarity should be elevated to the legal review standard for the entire criminal compulsory law to effectively protect the basic rights of citizens.On this basis, pursue the rationality of legal coercion. Next, the author will compare and criticize the current research status of Chinese and foreign academic theories on the clarification and rationalization of police interrogation power.
2. Review of academic theories on the clarification and rationalization of the police’s power of interrogation
Both Chinese and foreign legal circles have made efforts to explore the clear and reasonable provisions of the police’s power of interrogation. Most of the main issues studied by Chinese scholars are limited to general discussions on the nature, conditions, extent of exercise, and relief mechanisms of the right of inspection, but there are few in-depth studies on specific issues. To this end, it is feasible to select representative knowledge for review.
1. Chinese scholars discuss the milestones, progress and limitations of the exercise of the right to interrogate
"Suspected of committing a crime" stipulated in Article 9 of the "Police Law" is extremely vague in meaning and can easily be interpreted as suspicion. See the crime rate For example, the patrol and interrogation work standards of the patrol detachment of a certain city’s public security bureau stipulate that people with suspicious physical appearance and facial expressions should be interrogated, [[27]] and even be understood as purely subjective premonitions, uneasiness, and If you have doubts, you can also initiate an investigation. The above cases are enough to show the commonness of this situation.
Another explanation is that according to the legal system’s consistent interpretation position, the “suspect” here should be interpreted in the same way as the “suspect” in the Criminal Procedure Law. “In fact, the police must be 50% certain. Start an investigation, otherwise you will be questioned and criticized by the masses." [[28]] In fact, in the Criminal Procedure Law, suspicion is a condition for arrest with evidence, and the "percentage of certainty" needs to be "more than 50%." 〔[29]〕
This is the first understanding, which results in the scope of the investigation being too large, the infringement of citizens' rights too much, and the efficiency of the investigation being too low. As a police briefing claiming to have "remarkable achievements" stated, 812 people were interrogated and only 35 criminals of various types were intercepted. 〔[30]〕
If this is the second understanding, the requirement for proof is too high and the scope of the inquiry is too narrow, which cannot meet the practical needs. This leads to selective inspection, which "is likely to hurt the normal personal emotions of the citizens being inspected." Therefore, there are suggestions to "separate the power to inspect resident ID cards from the power to identify suspected criminals." [[31]] It is true that improving the description can indeed avoid the "criminal suspicion" and "labeling effect" of the specific interrogation behavior of checking ID cards [[32]], but it is still unavoidable for other interrogation behaviors. Moreover, this particular interrogation still faces substantial questions about how to explain its legitimacy. More importantly, the issue of overall too high a standard of evidence remains unresolved.
There is a plan to change "suspect" into "reasonable suspicion", which increases clarity and rationality. A typical example is that in 2006, Chinese scholar Wan Yi published an article "On Interrogation" in "Legal Research", which for the first time systematically sorted out and made suggestions for the improvement of foreign interrogation systems and the Chinese system. Its core idea is to "establish due legal procedures for interrogation": in terms of starting standards, the police are required to generate reasonable suspicion of crime based on surrounding circumstances and personal experience in public places; in terms of intensity of interrogation, the reasonable necessity of coercive force is required and clear The retention time is specified and shall not exceed the summons time. [[33]] Therefore, the scope of the cases determined is crimes, excluding illegal cases; the degree of suspicion required is reasonable suspicion, not just suspicious behavior, but it does not reach the level of suspicion proven by evidence.
Comparing the "suspected of illegal crimes" stipulated in Article 9 of the "Police Act", the respective investigation scope circles overlap: although the scholars' plan does not include suspected circumstances of illegal cases, it changes the degree of suspicion of criminal cases from suspicion to Reasonable doubt. The scholar's plan explicitly requires that suspicion be raised "based on abnormal behavior or other surrounding circumstances and with reference to his or her personal experience." This clearly limits the basis for doubt to systematic, objective facts and experience. Moreover, the qualified suspicion must reach a reasonable level, which basically balances the ability to handle the case, needs and civil rights.
However, this plan limits the cases to the crimes and crimes in the criminal law, [[34]] and excludes all illegal situations in the Public Security Administration Punishment Law, which is neither reasonable nor realistic. Comparing the crimes in the Criminal Code with the illegal acts in the Public Security Administration Punishment Law, there are two situations: one is the type of behavior is the same, but the crime amount is higher, such as theft; the other is the type of behavior is completely different, such as Prostitution is not a crime, it is just illegal. The essence of security patrols is to conduct preliminary investigations when there is reasonable suspicion to further determine whether it is illegal or criminal, and then decide whether and how to take further action. There is no reasonable operational possibility to force a distinction and not to investigate any suspected illegal cases.
Overall, this plan is a milestone in the process of clarifying and rationalizing the inspection conditions. But there is still the problem of standard staticization.
Although it breaks down the "suspect" stipulated in the Police Act into two elements: seriousness (crime) and possibility (reasonable suspicion), it still statically limits the two elements. This relationship pattern can be analyzed using the mathematical intersection (∩) pattern. The possible hazard is one of the variables, denoted by X, and the likelihood of the hazard is another variable, denoted by Y. The two must be consistent at the same time, that is, the intersection range is sought, which is X∩Y.
It can be seen from Figure 1 that if a standard requires two quantitative elements at the same time, its limited scope will be in a rectangular expansion. Returning to the two-condition relationship model for the exercise of the police's right to interrogate, if both the potential for high harm and the high possibility of harm are required, then the scope of the interrogation that can be covered by this relationship model is as shown in the figure below, with sharp edges and clear distinctions. . The result is that if the possible harm is very high, but the possibility is average, it cannot be investigated; if the possibility is very high, but the possible harm is average, it cannot be investigated. The scope of inquiry under conditional relationship mode is still too narrow.
Figure 1: The scope of the case corresponding to the two-element intersection model
But legal practice is far from this. For example, the British anti-terrorism law before the "9.11" incident stipulated that senior police officers could authorize the police to stop and search passing pedestrians, vehicles and their belongings. [[35]] Reasonable doubt is not required at this time. Moreover, after the London Underground bombing in 2005, people were required to carry identification documents on the streets for inspection. [[36]]
China’s Anti-Terrorism Law, which has been implemented since 2016, stipulates that “units, places, and places that are more likely to be subject to terrorist attacks and that may cause significant personal casualties, property losses, or social impact will Activities, facilities, etc. are determined as key targets for preventing terrorist attacks. [[37]] Large-scale event hosting units, as well as key target management units, operating units, public security, armed police, and the People's Liberation Army should conduct safety inspections and inspections in accordance with regulations. [[38]] Not only can arbitrary interrogations be initiated under anti-terrorism situations, but also at border checkpoints, highway stations, and after serious crimes occur. [[39]]
These situations that focus on the seriousness and urgency of the crime but ignore the specific possibility of the crime show that the static scene-specific "reasonable suspicion of crime" standard still has limitations. has learned to recognize the problem of a single standard, and [[40]] suggested a two-tier standard model that uses both the questionable and practical reasonableness standards. [[41]] However, for arbitrary cross-examination and examination, it is not that the exceptional standard of reasonableness replaces the general standard of suspicion, but that the requirement for the possibility of harm is extremely low because the possible harm is extremely high. It is a model that considers two elements at the same time. Other scholars have also begun to realize that important places involving public safety only require a lower standard of proof, but only as exceptions to the standard of proof, [42] and partially understand the necessity of recognizing the dynamic model.
2. American scholars discuss recent breakthroughs and model disputes in the exercise of the right of interrogation
Regarding the influence of the seriousness of crimes on the conditions for the exercise of the right of interrogation, a major recent breakthrough in foreign theoretical research is the 2014 paper "Interception-" in the "Yale Law Journal" -Patched Crime Severity Model": The author recommends first excluding minor civil and administrative violations that lack social condemnation and a considerable degree of punishment (minor offences), and then excluding misdemeanors with statutory sentences of less than one year or only fines ( Misdemeanor), stop and pat-and-search can only be carried out for more serious felonies to prevent the police from engaging in fishing-style pre-trial investigations and ensure that they focus on preventing and solving the most serious crimes; however, its summary is specific The statement is that “the officer reasonably believes that the suspected offense poses an immediate threat to public safety.” [[43]] Based on the logic of its argument,
emphasizes the restrictive effect of the seriousness of the crime on the exercise of the right to interrogate. However, the elements of "reasonable suspicion" and "immediate threat" suddenly appear in its summary. The relationship between the three must be re-examined.
If we follow the conclusion of the text, it proposes a single standard, and the possible harm is high. The factor of possibility is not required, that is, the range to the right of the vertical line on the X-axis in the above figure can be investigated. But this standard also suffers from static problems. If stated according to its abstract, it requires three single elements to be met at the same time, and it is still a static standard structure that can be displayed as a part other than the specific three-dimensional part in the three-dimensional diagram. It can be found that the limiting standard requiring three elements at the same time means parts outside the rigid three-dimensional range.
The author believes that the seriousness factors of the crime proposed are as mentioned above, and should be recognized and taken seriously to deal with situations where the degree of suspicion is low but the crime is serious, and a general investigation is still required. The additional reasonable suspicion requirement needs to be treated differently. For interception, serious crimes mean that there is no requirement for the degree of suspicion, but for further human body patting and searching, this requirement should be reasonable. After comprehensive cross-examination, if there is reasonable suspicion that the person possesses key evidence such as weapons, criminal tools related to specific serious crimes, stolen goods, etc., a physical pat search can be conducted.
Finally, the "immediate threat" element attached to it should also be recognized and learned from to a certain extent. The urgency of a threat refers to the possibility that the possible harm will be realized immediately. This is a different consideration than the likelihood. A crime may have a low probability of happening, but it will happen immediately; a certain crime may have a high probability of happening, but it will happen much later. The impact of the two on response measures is different. If the suspected object is a weapon, it may be used immediately, causing harm to the police or others. However, if the object of suspicion is a criminal tool or stolen property, the possibility of its use, transfer, and destruction may not always be realized immediately.
The urgency of a hazard dynamically affects the application of likelihood and severity factors. [[44]] The more imminent the danger, the lower the likelihood of the claim. For example, “if a vehicle that is traveling quickly is not stopped, it is impossible to determine whether the person it is carrying meets the requirements for interrogation stipulated in the police’s powers.” [[45]] Although this is not an urgent issue of the crime itself, it is. It is an urgent issue of the criminal's escape, which lowers the level of suspicion and does not require reasonable suspicion. It only requires that "the prisoner or the person who is about to commit a crime has the probability of using a car."
Similarly, the higher the urgency, the lower the required seriousness of the crime. If there are reasonable grounds to suspect that the violation will occur soon, an investigation can also be carried out. The third relationship model between two influencing factors is the product relationship model, which integrates the two parallel single criteria into a brand new criterion and evaluates the two criteria at the same time.It can be found from Figure 2 that if a standard requires the product of two variables, the relationship between the two variables is complementary and restrains each other, and its limited range is curve spreading and radial. The intersection of the two factors is required for simultaneous progression. The model is more flexible and comprehensive. 〔[46]〕
Here, the explanatory power of the function definition domain on the scope of legal application is "poetic expression and highly precise" of the scope of the exercise of the right to interrogate through the diversification of non-linear functions and the typing of curve mapping relationships. "fit" to achieve "timely response to changing types of social relationships." 〔[47]〕This theoretical relationship model of one trade-off and one trade-off achieves the appropriateness and dynamic balance of the scope of investigation.
Figure 2: The scope of the case corresponding to the two-element product model
If the three elements are dynamically understood as "one decreases and the other increases", the limited range will appear to be outside the round and flexible ellipsoid shown in the three-dimensional space diagram. range. Whether it is two-element two-dimensional coordinates or three-element three-dimensional coordinates, it shows that the static rigidity required at the same time is inferior to the dynamic flexibility required at the non-simultaneity. The ever-changing exercise of immediate coercive power requires a flexible multiplication model standard, which should be different from the intersection model standard of "proven by evidence" and "possible punishment of imprisonment or more" in the later and more intrusive conditions for the exercise of the power of arrest.
In short, the research of American scholars has helped solve the problem that Chinese legislation and scholars' interrogation behavioral standards are too single and static and rigid, but it has led to more complex standard structure problems, which should be carefully and systematically reflected and clarified.
3. Systematic rationale for clarifying and rationalizing the police’s power of interrogation
The regulation of the conditions for the exercise of the police’s power of interrogation must take into account the clarity and rationality of the law. In terms of clarity, the "dual-track model" of preventing crimes and investigating people for crimes and the "three-point link" of interrogation, inspection and detention should be fully considered; in terms of rationality, specific crimes, civil rights and police safety should be considered. Proportional "three-faceted coordination" and "three-factor consideration" of severity, possibility and urgency.
1. A clear plan for the conditions for the exercise of the right of interrogation
The "dual-track model" for the exercise of the right of interrogation was proposed in the discussion on the legality of the police's inspection of ID cards : There are only two situations when the police inspect the ID cards of unspecified strangers. One is The facts or results of the crime are known in advance and the purpose is to find the suspect. The other is to intuitively believe after seeing the person that the person may have committed a crime without checking or investigating. 〔[48]〕 However, the two situations he summarized, namely, seeking trouble for reasons and seeking trouble for persons, only belong to a single model of searching people for crimes: logically, illegal crimes occur before interrogation; and it does not take into account illegal crimes. A positive pattern of criminal offenses that may occur after interrogation.
Preventing people from committing crimes and investigating people for committing crimes are just like the two-way track mode where the forward and reverse directions are started at the same time. "Preventing, stopping and punishing illegal and criminal activities" is the legitimate task of the police stipulated in Article 2 of the Police Law. It is impossible to stop illegal and criminal activities during interrogation. This is an active crime, not a suspicious person; the interrogation faces It is a situation to prevent or punish illegal and criminal activities. [[49]] This is reflected in the statement “preventing and solving” the most serious crimes in the above-mentioned Yale Law Journal paper.
Reasonable suspicion that others will commit illegal crimes and reasonable suspicion that others have already committed illegal crimes mean different interrogation conditions. Legal provisions and doctrinal suggestions that fail to take this into consideration and are actually only oriented to one mode are likely to be one-sided and vague, and will at least lose the opportunity to further refine the conditions for interrogation.
For example, in the mode of investigating crimes for personal defense, it would be unreasonable to limit the investigation to serious crimes, because it may be difficult to determine whether the target is serious for crimes such as theft; and in the mode of investigating people for crimes, if the crime has already occurred, whether The seriousness has been clarified, which is enough to apply the felony standard to decide whether to conduct an interrogation.The respective “three-point link”, “three-facet coordination” and “three-element consideration” in the dual-track may have different contents.
The second requirement for clarity is that the conditions for the exercise of the "three-point link" of interrogation, inspection, and retention in the exercise of the right of interrogation should also be treated differently, otherwise they will be lumped together. For example, an article pushed by the WeChat public account of the widely read "China Law Review" believes that the police need to be empowered to take further actions such as identity verification: "It is difficult to obtain more and more accurate information simply through perspective, facial expressions, facial expressions, and simple conversations. , therefore, the police must be given the right to first take further action based on their superficial judgment and obtain more real information from the action, which is the specific purpose of this further action. Type."[[50]]
The first thing to make clear is that the "simple conversation" here already belongs to the cross-examination behavior in the right of interrogation. Therefore, the "initial shallow judgment" formed later is a suspicion that "it is difficult to further confirm". But this suspicion is not universal enough to support the type of interrogation that involves checking identity documents. The positive and immediate coercive increase of the "three-point link" must have an incremental reason, even within a certain link. Verification is somewhere between interrogation and inspection of persons and belongings.
For example, in the inspection of typical identity documents, resident ID cards, the first of the four inspection situations stipulated in Article 15 of the "Resident Identity Card Law" is the general situation of interrogation of "persons suspected of committing crimes". There is no distinction between questioning and The conditions for verification will in fact still lead to arbitrary verification in addition to arbitrary inquiries.
Stopping others and asking them to identify themselves is a "seizure" of the person. Specific and objective facts are required to show reasonable suspicion, that is, the public interest can justify the infringement of personal security and privacy. [[51]]
Article 19 of the "Resident Identity Card Law" stipulates that if the people's police commit any of the following acts, they shall be given administrative sanctions in accordance with the law according to the seriousness of the case; if it constitutes a crime, they shall be investigated for criminal liability in accordance with the law: violating the regulations to inspect the resident identity card, Violating citizens' legitimate rights and interests; disclosing citizens' personal information obtained through checking resident identity cards and infringing upon citizens' legitimate rights and interests. This fully demonstrates the security and privacy risks of further verification of physical evidence after verbal identification.
General arbitrary identity verification can only occur at certain times and regions. For example, the other three situations stipulated in Article 15 of the "Resident Identity Card Law": "... (2) When on-site control is implemented in accordance with the law, the identity of the relevant personnel needs to be identified; (3) When an emergency that seriously endangers social security occurs, The identity of relevant persons at the scene needs to be ascertained; (4) Other situations in which identification is required by law.” Another example is the aforementioned London subway bombing case where people took to the streets with their ID cards, and another example is Hong Kong’s requirement to carry ID cards for verification based on a specific smuggling situation. Another example is the driver's license that requires you to carry it for future reference: it can be placed in a closed space in the car, and the risk of loss is lower than that of an ID card, and the cost of carrying it is also lower; and the necessity to ensure driving safety and investigate and deal with illegal crimes is also higher than that of pedestrians on the street. . [[52]]
Although cross-examination has a relatively small impact on civil rights, it is more common and occurs more frequently; although inspection and detention have a greater impact, they occur less frequently. Therefore, the conditions for their use should be carefully explored in each of the three links. One of the major reasons for the tragedy of the aforementioned Shenzhen girl being interrogated while shopping and the Lei Yang case was that the three links were not distinguished, and significantly stricter conditions were not applied to the most intrusive detention behavior.[[53]]
(1) For the cross-examination process, the law should clearly stipulate the purpose of the cross-examination, the breadth and depth of the cross-examination (what kind of relevant identity information, where detailed), the reason and destination of the behavior, and the time of the cross-examination;
(2) For the inspection link , the purpose of the search (whether it is limited to portable weapons, [[54]] controlled knives, felony criminal tools, stolen goods), the breadth of the inspection (whether it includes people, whether it is limited to suspects) The scope of the person's immediate control [[55]]), the depth of the search (whether it is limited to touching the body surface, [[56]] whether it is limited to "obvious" items [[57]]), the time of the on-site inspection, especially Search time (whether it stipulates the maximum number of minutes);
(3) For the detention process, the purpose of the detention, the contents of the detention, and the detention time must be clearly defined. Article 9 of the current "Police Law" has clearly stipulated that the Ministry of Public Security The "Applicable Lien Provisions" are also explained in detail, which meets the requirements for legal clarity. However, further consideration should be given to the reasonableness of the conditions for exercising the right of inspection in the three links, such as whether the retention time is too long.
2. Reasonable plan for the conditions for the exercise of the right of interrogation
Reasonable provisions for the conditions for the exercise of the right of interrogation should carry out "three-sided coordination" of specific crimes, civil rights and police safety. Proportionality principle is a general principle of legal coercion [[58]]. It should not only be considered in the legal practice of departments such as coercion in administrative law and criminalization in criminal law, but also should be a general legislative principle in the constitution. . The principle of proportionality requires consideration of legitimate ends and the selection of necessary means to minimize the adverse impact on citizens' rights. [[59]] During the interrogation, the purpose is to prevent and combat illegal crimes and ensure the personal safety of the police at the scene; [[60]] The means are three links: interrogation, inspection, and detention.
As mentioned above, the methods in the three links have different coercive effects and require different conditions to be considered. Otherwise, they will be generalized, mistakenly upgrade the immediate coercive measures, and even overreact, "cannon-killing mosquitoes", or even aimlessly. The harmful practical thinking of "blank cannon".
The above discussion on clarity has listed the relevant impact dimensions of coercive means. Legislators should select appropriate nodes in each dimension to coordinate with the purpose of power. Closely related to this is the “three-faceted balancing test” (balancing test) for the purpose of exercising the right to inspect. If we only consider the seriousness, possibility or urgency of the crime and do not consider the coercive effect of the means (the infringement of civil rights by the respective strengths of the "three links" in the interrogation process), there may be a situation where coercive means are escalated arbitrarily; if not Considering the security situation of the police at the scene, they may mistakenly rule out minor crimes, and believe that the police should not conduct cross-examination on suspicion of minor crimes, let alone inspection and subsequent detention.
When considering the two purposes of crime and police safety, the "three-factor consideration" of seriousness, possibility and urgency should be carried out. American legal philosopher Feinberg believes that the doctrine of state coercion in preventing harm is: the greater the possible harm, the lower the requirement to prove the possibility of the harm caused by the exercise of state coercion; conversely, the higher the possibility, the requirement The less harmful it is. [[61]] This establishes a dynamic relationship model between the two elements of seriousness and possibility, rather than a fixed static model relationship such as the specific degree of suspicion of a specific crime, in order to adapt to the more complex and changeable current situation of crime.
Behind the doctrine of preventive coercion is the principle of legal proportionality, which also applies to subsequent investigation and punishment activities.
(1) For preventive interrogations for civil defense crimes, it is difficult to always require that the possible behavior be a felony. At this time, it should be emphasized that the possibility of harm is high, that is, the high degree of suspicion and objective circumstances require; however, when the possible behavior cannot be In cases of serious crimes, such as prostitution, interrogation should not be conducted unless the possibility is extremely high;
(2) For subsequent interrogations of persons for crimes, when the seriousness of the crime is known, the corresponding degree of possibility should be required;
(3) For police safety considerations, if the subject of the interrogation may be carrying a deadly weapon, the probability requirement for a pat search can be lower; the same logic applies to the consideration of other dangerous items. At this time, more consideration will be given to the impact of severity on possibility, and less consideration will be given to the impact of possibility on severity, unless the existing case facts or data show that the possibility of this (type of) object to attack the police and resist is substantially higher than that of other ( class) object.
Technically, severitycan be divided into three levels, illegal acts, misdemeanors and felonies, and even the most serious "endangering national security, terrorist activities crimes" and intentional homicide crime types; while possibility can Drawing on the American classification of levels of evidence [62], it can be simplified into four levels: reasonable doubt, reasonable suspicion, substantial probability, and clear and convincing evidence. Suspicions other than mere suspicion require a factual basis based on specific intelligence and information.
In addition to these two factors, urgency should also be considered. According to common human principles, things have priorities, and in addition to seriousness, the element of urgency should also be considered. For the immediate coercive act of interrogation, it is particularly necessary to raise the element of urgency.
(1) When interrogating a person for a crime, if there is no interrogation, the suspicious person will disappear immediately and be difficult to find again. At this time, the urgency of interrogation is particularly prominent, as stipulated in Article 15 of the aforementioned "Resident Identity Card Law" When an emergency that seriously endangers social security occurs, it is necessary to find out the identity of the relevant personnel at the scene." Another example is the general checkpoints at highway crossings, especially at borders, which also focus on the element of urgency. The British case shows that although the police stopped and searched three cars based on objective and reasonable intelligence to prevent disrupting the peace of the Royal Air Force base, their actions were illegal and disproportionate because the disruption was not imminent at the time of the stop. [[63]]
(2) When it comes to civil defense crimes, not only the seriousness of dangerous items such as flammable, explosive, nuclear and radioactive items is taken seriously, but the public place environment where the investigation is conducted also determines their urgency, even if The low possibility of use does not affect the exercise of the right of inspection. If a person is detained for an actual or threatened breach of the peace, continued detention is limited to circumstances where there is a genuine and reasonable fear that the person will breach the peace again within a relatively short time. 〔[64]〕
(3) When preventing on-site infringement on the police, the urgency is generally paid attention to, so if the subject of the interrogation may carry anti-personnel items with him, it is generally justified as a pat search.
After considering the above three factors, the purpose of the interrogation has been recognized to varying degrees, which determines the reasonable combination of the breadth, depth, and time of the coercive means in the three links of the interrogation.
4. The implication of the era of the proper exercise of state coercive power
So far, the most civilized progress of state coercive law (criminal law) that has the most prominent impact on civil rights is that the analogy was abolished when the criminal law was revised at the end of the last century, and the law was based on the principle of statutory punishment. The clarity of attaching great importance to the rights of citizens, while the Criminal Procedure Law established a clearing of suspicion when revising the law, shifting from a focus on combating crime to a focus on protecting human rights.
The power of police interrogation itself lies at the intersection and border area of criminal law, criminal procedure law, police law, public security law and other legal departments and legal disciplines. You can neither try to solve the entire problem from your own perspective, nor push the problem to other departments. Only through collaborative advancement can we innovatively propose a system approach. In terms of methodology, both the legal system and the jurisprudence system need to break through departmental and professional barriers and conduct systematic and coherent thinking.
method is as smooth as water. In order to build a "civilized" modern country by the middle of this century, the concept that should be highlighted is that although the role and contribution of the people's police in maintaining social order and security cannot be denied, more attention should be paid to civil rights, especially personal freedom and privacy. The degree of protection of rights has been improved. Chapter 1 of the Police Law, "General Provisions," contains five articles. It only emphasizes the execution of duties in accordance with the law, and does not mention respecting and protecting citizens' rights when enforcing the law. This is legislation after the 2004 Constitution established that "the state respects and protects human rights." The lack of concepts makes it difficult to systematically improve the importance and civilization of the entire society to personal rights.
The ancient Greek sage Aristotle defined the two elements of the rule of law as well-established laws that are strictly implemented. The former requires that the form of the law be complete, clear and the substantive content reasonable. The legal system of socialist China has been basically established, which means that the formal rule of law has been basically established, but the legal clarity still needs to be further improved. There are three ways to clarify legal concepts: legislative interpretation, judicial precedents, and administrative benchmarks. [[65]]Through these paths, the principles, framework and processes proposed in this article should be clearly defined, and a typical positive list and a typical negative list should be listed accordingly, which will then be promoted by judicial and administrative activities.
The journey of the road ends with the highest good. It is equally important to pay attention to the rights of citizens in the process of building a country with substantive rule of law, which requires strengthening the substantive rationality of the exercise of public power. Specifically, the law should clearly require the police to proportionately consider and weigh factors related to the legitimate tasks of the police stipulated in Article 2 of the Police Law, when exercising their power to conduct daily inspections. , try to avoid unnecessary restrictions and deprivations on citizens’ personal freedoms. Pragmatic promotion mechanisms include the disclosure of review documents by the legal department and the emphasis on reasoning in administrative litigation documents.
Reference:
[[1]] Wan Yi: "On Interrogation", "Legal Research" Issue 2, 2006.
〔[2]〕See Deng Zibin: "Implementation Basis and Procedural Supervision of Road Inspection and Interrogation", "Legal Research" 2017 Issue 6; Yu Lingyun: "The Way to Determine Uncertain Legal Concepts - Using the Police "Example of the conditions for triggering the right to interrogate", "Legal and Business Research", Issue 2, 2009; quoted above: Wan Yiwen; Ai Ming: "On the Characteristics and Legal Nature of Interrogation Measures in my country", "Administrative Law Research", Issue 2, 2010 Issue; Zheng Xi: "On the Police's Power of Interrogation", "Administrative Law Research", Issue 4, 2012; Miao Aijun: "On the Reasons for Police Interrogation and Its Proof Standards", "Public Security Research", Issue 7, 2006.
[[3]] See Zhang Zhichao: "Police Interrogation Measures from the Perspective of Comparative Law", "Journal of Beijing People's Police College", Issue 6, 2008.
[[4]] It should be noted that the need for legal clarity often prompts legislators to pass sophisticated but extremely broad laws, in which case police discretion is exceeded (See David Thacer, 'Order Maintenance Policing', in Michael D.Reisig and Robert J. Kane ed., The Oxford Handbook of Police and Policing (New York: Oxford UP, 2014), p140). Of course, China's current legislation is far from the stage where such concerns arise.
〔[5]〕 ibid, p123.
〔[6]〕 "The Sun Zhigang incident refers to the media's function of public opinion supervision and the disclosure through news reports that government law enforcement agencies took in and detained citizen Sun Zhigang, resulting in his being beaten to death, and promoted The State Council’s abolition of the regulations on detention and repatriation is a famous case in protecting citizens’ rights.” Baidu Encyclopedia: “Sun Zhigang Incident”, https://baike.baidu.com/item/%E5%AD%99%E5%BF%97%E5%. 88%9A%E4%BA%8B%E4%BB%B6.
〔[7]〕 See Yang Jie et al.: "Shanghai Police Assault Case Continued: Police Disclosed Recording Materials of Yang Jia's Interrogation 1 Year Ago", http://news.sohu.com/20080708/n258008582.shtml.
〔[8]〕 See Hu Jie: "Shanghai Police Attack Case Continued: Police Disclosed Recording Materials of Yang Jia's Interrogation 1 Year Ago", http://news.xinhuanet.com/legal/2003-12/02/content_1208950.htm.
〔[9]〕 See Aoyi.com: "Shenzhen girl was forcibly summoned for shopping and the police officer involved was suspended", http://news.sohu.com/20160610/n453829523.shtml.
[[10]] In 1995, the Ministry of Public Security's "Interpretation on Issues Concerning the Implementation of the People's Police Law by Public Security Organs" pointed out that the objects of interrogation are "persons who behave suspiciously and are suspected of committing crimes". This may be understood to mean that those who behave suspiciously are those who behave suspiciously. For suspicion.
[[11]] See Ren Zhongyuan: "Beijing prosecutors announced the cause of death in Lei Yang's case, and two police officers were arrested", http://www.infzm.com/content/118115.
[[12]] Zhang Zhichao: "Police Interrogation Measures from the Perspective of Comparative Law", "Journal of Beijing People's Police College", Issue 6, 2008.
〔[13]〕 See s. 8 of the Criminal Attempts Act 1981.
〔[14]〕 See s. 4 of the Vagrancy Act 1824.
〔[15]〕 See The Law Reform Commission(Ireland), Report on Vagrancy and RelatedOffences (LRC 11-1985), p96.
〔[16]〕 See s.28, Summary Offences Act 1981.
〔[17]〕 See s. [[ 18]] See s. 29(3), Summary Offenses Act 1981.
〔[19]〕 See Penal Code Ann.§647(e) (West 1970).
〔[20]〕 See Kolender v. Lawson, 461 U.S. 352, 361 (1983).
〔[21]〕 Penal Code section 653.20(c).
〔[22]〕 See 8-4-015(Gang loitering), Municipal Code of Chicago(Current through Council Journal of September 24, 2015).
〔[23]〕 See Ron Levi, 'Loitering in the City That Works', in Markus D. Dubber and Mariana Valverde eds. Police and the Liberal State (Stanford, Calif.: Stanford General, 2008), p199 .
〔[24]〕 City of Chicago v. Morales, 527 U.S. 41 (1999).
〔[25]〕 Supra n 4, pp140-41.
〔[26]〕 See Zhang Jianjun: "Judgment of Clarity of Criminal Law" Standards", "Journal of East China University of Political Science and Law", Issue 1, 2011.
[[27]] cited above [2], Ai Mingwen. There is also a similar phenomenon in the United States where the police perform "useless efforts", op. cit. 2, by Yu Lingyun,.
[[28]] See Hu Jiangang: "Research on the American Interrogation System", "Journal of China People's Public Security University (Social Science Edition)" 2012 Issue 3. Excessive scope of discretion under uncertainty will lead to practical errors that are intolerable to the public, as quoted by Yu Lingyun.
[[29]] cited above [2], Ai Mingwen.
〔[30]〕cited by Ai Mingwen. See also the previous quotation [2], article by Deng Zibin.
[[31]] See Xu Jing: "Research and Analysis of the Legal Basis for Checking Resident ID Cards", "Journal of Fujian Police College", Issue 4, 2013.
〔[32]〕 See James Chalmers and Fiona Leverick, Fair Labelling in Criminal Law,71 MLR (2008) 224-239 .
〔[33]〕 cited in [1], Wan Yiwen.
〔[34]〕The "quantity of crime" is a quantitative element that indicates the degree of infringement of legal interests by an act on the premise that the ontological elements of a crime are met. See Chen Xingliang: "Ontological Criminal Law", Renmin University of China Press, 2011 edition, page 339.
〔[35]〕 See s. 44, Terrorism Act 2000.
〔[36]〕 cited in [2], Ai Mingwen.
[[37]] See Article 31. Arbitrary interrogation in the context of key terrorist targets means that the abstract risk elimination cost of major infringements is borne by all members of society, and it is difficult or even impossible to distinguish the degree of suspicion.
[[38]] See Articles 35, 36, and 38.
[[39]] cited in [2], written by Deng Zibin.
[[40]] cited in [2], Ai Mingwen,.
[[41]] quoted Ai Mingwen.
[[42]] cited above [2], Miao Aijun,.
〔[43]〕 See David Keenan & Tina M.Thomas, An Offense-Severity Modal for Stop-and-Frisks, 123 Yale L. J. (2014) 1448, 1448-85.
〔[44]〕Chinese scholars did not realize this The third element also mistakenly introduces the factor of personal danger, confusing the distinction between identity and behavior. See Miao Aijun's essay, page 85. Criminal history should not be used as a reason to launch an interrogation, op. cit. 1, Wan Yiwen,.
〔[45]〕See Zheng Shanyin: "A Discussion on the Legal System of Japanese Police's Crime Investigation Powers", "Taiwan "Central" Police University Legal Essays", Issue 5, 2000.
[[46]] For details on various relationship models, see Yu Zhigang and Guo Zhilong: "Systematic Construction of Quantitative Standards for Crime in the Information Age", "Legal Science" Issue 3, 2014.
[[47]] For the judgment and selection of functional methodology in legal research, see Guo Wu: "When Law Meets Functions—A Preliminary Discussion on Functional Thinking in Legal Research", "Gansu Social Sciences" Issue 6, 2015.
[[48]] cited above [31], Xu Jingwen.
[[49]] Prevention can also include situations where the preventive behavior is completed and the consequences are expanded. This situation does not fall into the category of "stopping" current crimes.
[[50]] cited above [31], Xu Jingwen.
〔[51]〕 See Brown v. Texas, 443 U.S. 47 (1979).
〔[52]〕 See Sarah A. Seo, The NewPublic, 125 Yale L. J. (2016) 1616, pp1638-47.
〔[53 ]] For many key issues regarding operational details, please refer to Wang Jianhong: "Research on the Interrogation System from the Perspective of Comparative Law", published in "Contemporary Law" Issue 2, 2008: "The applicable standards for interrogation in civil law countries are extremely clear and detailed in statutory law. are determined by the description and exceptions to the general standard are also enumerated.”
〔[54]〕 See Terry v. Ohio, 392U.S. 1 (1968).
〔[55]〕 See Chimel v. California, 395 U.S. 752 (1969).
〔[56]〕 See Terry v. Ohio, 392U.S. 1 (1968).
〔[57]〕 See Harris v. United States, 390 U.S., 234 (1968).
〔[58]〕 See Yutaka Arai-Takahashi, 'Proportionality', in Dinah Shelton eds., TheOxford Handbook of International Human Rights Law (Oxford: Oxford UP, 2013, pp447-48. The jurisprudence of the European Court of Human Rights even found that in the judgment structure of the principle of proportionality, the form of legality before narrow proportionality includes sufficient Knowledge and predictability (see page 454 of this article). That is, the above-mentioned clarity condition [59]] There are detailed regulations on the application of the “minimum infringement” rule in the interrogation time. See Hu Jiangang: "Research on the American Interrogation System", published in "Journal of China People's Public Security University (Social Science Edition)", Issue 3, 2012, pp. 65-66.
[[60]] cited in [2], written by Yu Lingyun.
〔[61]〕 See Joel Feinberg, MoralLimits of the Criminal Law, Vol. I (Harm to Others), New York: OxfordUniversity Press, 1984, p216.
〔[62]〕preceded by [2], Ai Mingwen.
〔[63]〕See R (on the application of Laporte)v CC of Gloucestershire, [2006] UKHL 55, HL.
〔[64]〕See McGrogan v CC of Cleveland Police, [2002] EWCA iv 86, CA .
[[65]] cited above [2], written by Yu Lingyun.
Editor | Graduate student of Nankai University Law School Song Jiawei
