法国诱惑侦查制度及其对我国的借鉴

French Temptation Detection System and Its Reference to China

近年来,随着诱惑侦查在司法实践中的运用愈加广泛,相关的法律问题也随之凸显出来。《刑事诉讼法》中对诱惑侦查的含糊其辞,混淆了诱惑侦查与技术侦查的概念;在何种案件中适用诱惑侦查、前提条件等都不明确,现有的合法性认定标准不合理。现阶段,我国诱惑侦查批准权归公安机关,而诱惑调查批准权归属不明,并且没有设置监督机构,易造成诱发侦查、调查机关权力滥用;而且,能够有效救济被追诉合法权益的途径有限。与国内立法、司法实践相较,同为大陆法系的法国诱惑侦查制度已经发展得较为成熟,借鉴法国成功的经验,在我国明确诱惑侦查的概念及适用的案件范围与条件,确立“客观为主,主观为辅”的合法性认定标准,实行完备的司法审查制度,进一步完善对被追诉人合法权益的救济,从而使诱惑侦查的优势得到最大限度的发挥。

In recent years, temptation detection has become more widely used in judicial practice,and related legal issues have also emerged: The Criminal Procedure Law has not explicitly stipulated the temptation detection, confusing the concept of temptation detection and technical investigation . It is also not clear to apply temptation detection to what kind of case under what conditions. The existing standards for determining legality are unreasonable. The approval authority for temptation detection is vested in public security agencies, while the belongingness of approval authority for temptation investigation is unknown, and there is no supervision institution, which easily causes the power abuse by the detection and investigation agencies. The effective remedies for prosecuting the legal rights and interests are very limited. All of these are the deficiencies of temptation detection. Compared with domestic legislation and judicial practice, French temptation detection system, which is also a civil law system, is more mature. Drawing on French successful experience, the essay appeals for defining the concept of temptation detection and the scope and conditions of applicable cases in China, establishing the “objectivity-based and subjectivity-aided” criteria for the determination of legality, implementing the complete judicial review system, further perfecting reliefs for the legal rights and interests of the accused, and thus giving full play to the advantages of temptation detection.