警察越轨行使侦查权原因探析——“威慑理论”的构建与应用

Analysis on the Reasons for Police's Misconduct Investigation——Construction and Application of the "Deterrent Theory"

“威慑理论”认为,警察在行使侦查权的过程中,必须拥有对侦查相对人足够的威慑,否则不能达到侦查目的。越轨行使侦查权行为的出现,原因在于警察对侦查相对人的正当威慑不足。越轨地获取威慑往往导致警察的威慑力大于无罪犯罪嫌疑人与不知情人能够抵御的程度,可能造成无辜的犯罪嫌疑人受到刑事追诉。只有在为警察获取正当的威慑提供必要保障的情况下,犯罪嫌疑人等的权利才可能得以实现。

＂ Deterrent theory＂ is constructed to explain the misconduct investigation of police. The theory is that, to make use of police powers of investigation, we must have sufficient deterrence relative to the objects investigated. Otherwise, the investigation could not achieve the objective. The phenomenon of misconduct investigation of police happened because that the police could not have enough allowable deterrence. To achieve the purpose of the investigation, the only way to acquire more deterrence is to misconduct. However the police achieve the deterrent misconduct often more than the extent which criminal suspects were able to withstand. It undermined the ideal level of deterrence, so it could lead to innocent suspects subject to criminal prosecution. Therefore, the only way to protect the rights of criminal suspects is to provide enough allowable deterrentce for the police.