犯意诱发型诱惑侦查中被诱惑者的罪与罚

The Crime and Punishment about the Person Seduced of the Intention Luring Spy

诱惑侦查手段普遍适用于毒品等隐蔽性犯罪,已为我国法律所肯定。但2012年修正的刑事诉讼法明确禁止犯意诱发型诱惑侦查。我国学说上普遍主张对犯意诱发型诱惑侦查的被引诱者在实体法上作无罪处理,似有不妥。程序法上,对犯意诱发型诱惑侦查证据的排除,根据我国法律只限于某些场合。从国内外实务来看,对被诱惑者"定罪但从宽处罚"的做法得到广泛认可,我国应当进一步将这一做法具体化。由于对被引诱者减、免刑事处罚的规定已逾越司法解释的权限,应由立法解决。

The temptation investigation is widely used in concealed crimes such as drug crime, and it has been confirmed by criminal procedure law modified in 2012. However, the intention luring spy is prohibited by law. In theory, it is generally advocated that the person seduced of the intention luring spy is innocent in substantive law, but this would be wrong. In procedural law, excluding the evidence obtained by the intention luring spy is limited to serious violations of human rights violations. The approach of ＂conviction but lenient punishment＂ for the person seduced in the practice of domestic and international has been widely recognized,. However, it should be further specific in our country. At the same time, the provisions of criminal punishment bout ＂reduction＂ or ＂free＂ have been beyond the judicial interpretation of the authority, and should be solved by legislation.