基本权利干预视角下我国警察强制措施的立法完善

Legislative Improvement of Police Coercive Measures:from the Perspective of Intervention in Fundamental Rights

基本权利所具备的人权制度化特征,使得基本权利理论成为部门立法的重要理论依据。警察强制措施极有可能构成对基本权利的干预,应当接受基本权利干预正当化要件的检验。我国警察强制措施在立法位阶上突破了法律保留原则,在体系构造上违反了比例原则,在运行过程中缺少司法令状。基本权利理论的植入在我国存在一定的难度,这表现在立法过于简略而政策增长过多导致警察强制措施授权的合法性质疑。违法和犯罪的二元制裁体系形成我国警察任务的双轨特征,"项目制"运作与压力型体制构成我国警察权控制的主要途径。以《人民警察法》的修改为契机,完善警察强制措施的相关立法,需要在观念上实现立法先行与宪法统摄,在制度上寻求基本权利与警察法的规范联结。

The institutionalization of human rights, which is a characteristic of funda- mental rights, makes the theory of fundamental rights an important methodology of branch law legislation. Police coercive measures are very likely to constitute an intervention in fundamental rights and therefore should be subject to corresponding justification examination. However, the legislation on police coercive measures in China contravenes the law reservation principle in terms of legislative rank, the principle of proportionality in terms of systematic structure, and the principle of judicial review in terms of operational process. The implantation of the theory of fundamental rights is faced with certain difficulties in China： the over-sketchy legislation and the excessive growth of policy have put into question the legitimacy of police coercive measures; the law-breaking/crime dual punishment system has led to the double-track characteristic of po- lice task; and the ＂project-mode＂ of operation and pressure system constitute the main ways of police power control in China. China should take the amendment of the People＇ s Police Law as an opportunity to improve the legislation on police coercive measures. To this end, it should re- alize legislation in advance, give full play to the controlling function of the Constitution, and es- tablish the normative connection between fundamental rights and the police law.