The process of legalizing special investigative techniques in China

• Author: LIAO Ming
• Pages: 510-536

FRONTIERS OF LAW IN CHINA

VOL. 10 SEPTEMBER 2015 NO. 3

DOI 10.3868/s050-004-015-0028-7

ARTICLE

THE PROCESS OF LEGALIZING SPECIAL INVESTIGATIVE TECHNIQUES IN CHINA

LIAO Ming*

Compared with conventional investigation methods, special investigative techniques

are specific investigation measures that are conducted without informing the parties

being investigated. Although these measures are effective means for fighting crimes, they

can also easily violate human rights. Before the modification of the Criminal Procedure

Law of China in 2012, only the State Security Law of the People’s Republic of China,

the People’s Police Law of the People’s Republic of China, and the departmental rules

enacted by the Ministry of Public Security contained provisions on special investigative

techniques. However, in practice, special investigative techniques have been widely

employed to investigate hidden crimes or major complex crimes, such as crimes

endangering state security, organized crimes, and drug-related crimes. To standardize

the use of special investigative techniques, the Criminal Procedure Law of China has

included a new paragraph about special investigative techniques, including technical

investigation measures, hidden identity investigation, and controlled delivery. And the

Procedure Rules for Public Security Organs Handling Criminal Cases (2012) and the

Tentative Rules for Criminal Procedure of People’s Procuratorate (2012) provide some

supplemental provisions. Although the importance of special investigative techniques

stipulated in the Criminal Procedure Law should be affirmed and approved, the

provisions of the Criminal Procedure Law and the relevant interpretations are too

simple and too principled, which will likely lead to the improper application or abuse of

special investigative techniques. Rules regarding which types of cases and under which

conditions special investigative techniques are appropriate, the necessary approval

procedures, and the legal consequences and relief mechanisms for illegal special

investigative techniques should be clarified or added to promote the legalization of

special investigative techniques — by striking a balance between power authorization

and power control as well as between the values of crime control and human rights

protection.

INTRODUCTION .....................................................................................................................511

I. THE CONCEPT AND TYPES OF SPECIAL INVESTIGATIVE TECHNIQUES ..................... 512

II. THE HISTORY OF LEGISLATION ON AND THE PRACTICE OF SPECIAL

INVESTIGATIVE TECHNIQUES IN CHINA .................................................................. 514

* (󰋣) Ph.D and Associate Professor in criminal procedure law, at College for Criminal Law Science,

Beijing Normal University, Beijing 100875, China. Contact: liaoming1978@126.com

2015] THE PROCESS OF LEGALIZING SPECIAL INVESTIGATIVE TECHNIQUES IN CHINA 511

III. EVALUATION AND PROSPECT OF THE PROVISIONS ABOUT SPECIAL

INVESTIGATIVE TECHNIQUES IN THE AMENDMENT AND THE

RELATED INTERPRETATIONS.................................................................................. 518

A. The Types of Special Investigative Techniques.................................................. 519

B. The Applicable Scope of Special Investigative Techniques................................ 520

C. The Applicable Time for Special Investigative Techniques................................ 522

D. The Applicable Conditions for Special Investigative Techniques...................... 522

E. The Approval Procedures for Special Investigative Techniques........................ 523

F. The User and Executive Body of Special Investigative Techniques................... 526

1. Issues of the People’s Procuratorates Using Special Investigative

Techniques ..................................................................................................... 526

2. The Executive Body of Special Investigative Techniques ............................. 528

G. The Intended Targets of Special Investigative Techniques................................. 529

H. The Applicable Duration of Special Investigative Techniques.......................... 529

I. Matters Requiring Attention in the Execution of Special Investigative

Techniques.......................................................................................................... 530

1. The Principle of Strict Implementation.......................................................... 530

2. Confidentiality and the Destruction of Information....................................... 531

3. Limits of the Use of the Materials ................................................................. 532

4. Cooperative Obligations of the Relevant Entities and Individuals................ 532

J. Issues on the Materials Obtained by Special Investigative Techniques Being

Used as Evidence................................................................................................ 532

1. Competence of the Materials Obtained by Special Investigative

Techniques Being Used as Evidence..............................................................532

2. Protective Measures for the Use of Evidence................................................ 534

K. Legal Consequences and Relief Mechanisms for Using Special

Investigative Techniques Illegally...................................................................... 534

CONCLUSION.........................................................................................................................535

INTRODUCTION

Compared with conventional investigation methods, special investigative techniques

are specific investigation measures that are conducted without informing the parties under

investigation. Neither the Criminal Procedure Law of 1979 nor the 1996 version contains

a provision for special investigative techniques. The Decision of the National People’s

Congress on Amending the Criminal Procedure Law (the Amendment) adopted and

promulgated on March 14, 2012 contains five provisions on special investigative

techniques, including technical investigation measures, hidden identity investigation, and

controlled delivery, in Chapter 2, Paragraph 8 of the second part of the Criminal

Procedure Law of China in 2012 from Article 148 to Article 152. Therefore, it has

formally established technical investigation measures and other special investigative