司法审查视野中的刑事搜查制度构建

The Construction of Criminal Search System in the Prospective of Judicial Review

刑事搜查作为一项强制侦查措施,因立法文本的粗疏,在运行过程中缺乏权力监督制约,易侵害被搜查人员的合法权益。现行刑事搜查监督手段过于软弱,监督效果较差。未来立法有必要以改革搜查令状审批主体为中心,通过完善非法证据排除规则、确立无证搜查备案审查制度与搜查实时监督制度、健全相关辅助措施等方法构建司法化的刑事搜查制度,实现刑事搜查由单一惩罚犯罪功能向惩罚犯罪与人权保障双重功能并重的转变。

The criminal search, as a mandatory investigation measure, tends to violate the legitimate rights and interests of the person who are to be searched because of the careless legislative texts and the absence of supervi- sion and restriction on the power in the process of operation. The current means of supervision on the criminal search tends to be too weak with the poor effect. The future legislation is suggested to center round the reform of the subject that approves the search warrant so as to construct the judicial criminal search system by improving the exclusive rules of illegal evidence, establishing the filing examination system of warrantless searches and the system of real-time search supervision, as well as perfecting the relevant supporting measures and so on. On by doing so can the criminal search system achieve the goal of transformation from the single function of criminal punishment to the dual function of criminal punishment and human rights protection.