China's private investigation industry is currently in a stage of rapid development, but in an embarrassing situation that cannot be relied upon or even illegal, the actions of private investigators are often on the verge of the controversial law and trigger whether the society is legal for its existence. This paper analyzes the various problems existing in the industry through the explanation of the development process of the foreign private investigation industry and its current situation, and further points out the inevitable trend and legislative proposals of the private investigation industry in China. The author is positive about the existence of the private investigation industry, but the private investigation industry must be included in the legal system. As a means of private remedy, private investigations have not been formally recognized in China, but their current situation should not prevent us from analyzing the relevant legal issues of the private investigation industry with a rational attitude.
Private investigators are sometimes referred to as "private detectives" or "private detectives" in China and correspond to "national detectives", meaning members of collective detective organizations and individual detective organizations.
The author believes that the meaning of private investigators and "private detectives" is not completely equivalent. Private investigators appear as ordinary citizens in criminal proceedings. The investigative power is a private right, which is equivalent to the rights of the parties. Suspects, defendants and victims are parties to criminal proceedings; And "private detectives" are easy to understand as the subject of investigative power. It is worth emphasizing. In some countries, private investigators are given certain investigative powers by law. Therefore, in China, the term "private detective" is not rigorous and unscientific. Since the advent of "private detectives" in China, the issue of investigative power and investigative power has been debated. The author believes that there is a fundamental difference among investigative powers. Cheng is illegally using investigative power. The power of investigation is a power given by the state to the law enforcement agencies to have the nature of state coercion, including a series of powers such as conducting investigations, recalling, summoning, and detaining detentions, such as searching, seizuring, and freezing. The investigation power is to discover the truth and the right to conduct inquiries, forensics and other activities.
As for the occurrence and formation of a case, the parties have the right to objectively and comprehensively understand the truth of the fact. Therefore, it is not accurate to think that the private investigator illegally exercises the right to investigate. This article focuses on the issues related to private investigators in criminal proceedings, while private investigations in commercial and civil litigation involve less involvement in public power. Not the main scope of this article.
The private investigator started out as a profession in Europe in the mid-19th century, but it first developed in the Anglo-American legal system and later gradually penetrated into the civil law countries in the mid-19th century. The western capitalist economy entered a period of rapid development, the urbanization process accelerated, the population flowed frequently, the crime rate also showed an upward trend, criminal cases suddenly increased, and the social security situation worsened. In the case of insufficient police capacity in public law enforcement agencies. It is widely felt that the method of maintaining public security by relying solely on the public law enforcement agencies represented by the police can no longer meet the needs of social development, so the private investigation industry came into being.
Early 20th Century, in order to curb crime, western society has stepped up police power, and the role of private investigations in criminal investigations has been limited. During this period, the focus of the private investigation industry service began to shift from simple criminal investigation and evidence collection to a variety of dangerous comprehensive prevention work.
With the development of the market economy and the growing social needs, in today's western countries, private investigators, like lawyers, have been widely recognized by the public and become an indispensable profession in society. Currently, many countries in the world have private investigation agencies. In the United States and the United States, the private investigation industry has become a mature industry in society. The qualification requirements and behavioral norms of practitioners are relatively sound, and the number of employees is considerable.
1) Overview of the UK private investigator system
As a social tradition, the British regarded policing and prosecution as citizens' private affairs for a long period of time. Until the 18th century, the British police and magistrates were largely amateurs. The nature of "and folk", and the prosecution of criminal cases did not officially change "private litigation" into "public prosecution" until the 1980s.
Since the 20th century, as police investigative forces have grown, many private investigators have turned into private security. Although the private security company's business is mostly crime prevention, it still plays a role in the crime investigation field. Criminal investigations are mainly carried out by the police, but in some general cases where the police are inconvenient to intervene or innocent. Private investigators play an important role. According to the relevant laws of the United Kingdom, private investigators can conduct investigations on civil cases and minor criminal cases according to the entrustment of the parties, but they must not refer to cases involving state secrets and government agencies, and must not hinder police criminal investigation and law enforcement. If the investigator finds the case as an important crime in the investigation of the case he has accepted, they should refer the case to the police and be obliged to provide the police with all the case materials.
(2) The history and current situation of the private investigation industry in the United States
The 17th century was a colonial period in North America. At that time, social security problems became more and more serious. Some cities began to establish full-time salary system official police agencies. The crime of infringement of property rights is rampant. The federal and local law enforcement authorities have the task of maintaining the legal order of the entire society. They can only focus on cases that cause serious harm to most members of society.
Therefore, many industrial and commercial enterprises are looking for more effective property security forces. And with the increasing complexity of social life, people have more rights to protect in social interactions. Facing this change, the private investigation industry has mainly carried out murders in the past, and theft of criminal cases such as finding missing persons and property disputes, and foreign affairs investigations have gradually turned to more fields, higher-level case investigations, and business-related investigations accounted for quite a few of them. Some private investigators specialize in the investigation of intellectual property infringement. They provide customers with information about other people making pirated goods and provide evidence for intellectual property litigation. Some are specially employed by law firms to prepare for the defense of criminal cases. Specific responsibilities include finding witnesses to interview police and witnesses, collecting and analyzing relevant evidence, preparing legal documents, and even giving evidence in court.
In the United States, although the prosecutor relies on the regular investigative work required by the police to prepare for many cases, the defense lawyer needs an independent investigator. Public defender firms are usually staffed with a small number of investigators, and privately hired lawyers may hire private detectives. The internal self-regulation of private investigators in the United States, the provision of standardized services, and the combination of the state administrations of the United States with the external management of the US private investigative law have made the private investigative industry in the United States a socially recognized professional status. Private investigators in the United States do not have the nature of the subject of "public power." Like ordinary citizens, all their professional conduct must be carried out within the limits prescribed by law. Any illegal act will bear legal responsibility. For example, private investigators often use eavesdropping devices and miniature cameras to conduct sneak shots during the process of investigation and evidence collection. However, these can only be carried out in public places. If they sneak into the home of the respondent, they will be guilty of installing a sneak recording device legally. Many states in the United States have specially formulated: private investigators at work, any act of counterfeiting law enforcement officers will be severely punished, and the license will be revoked, and civil or criminal liability will be borne. The federal and state regulations and regulatory agencies in the private investigation industry have strict regulations on the management of the private detective industry.
Broadly speaking, the scope of application and the applicable objects covered by all US laws and regulations apply to private investigators. Narrowly speaking, the US states and municipalities have specific local laws and regulations to regulate the private investigation industry. Most of the daily executive management agencies are state governments, which are under the responsibility of the state administration department of the states or the police department.
From the qualifications of private investigators, application for conditional examinations, license application, practice norms, to practice supervision. The customer complained about the obligations, such as legal obligations, and so on. Due to the different laws of the states, the management methods of the private investigation industry are not the same, but almost all require private investigators to apply for a business license before opening. Some state laws stipulate that no one may hire individuals to conduct investigations, but private investigators must be hired, so all private investigators with business licenses must be employed by a private investigative agency. Even if a private investigator is opened by a person, it must be handled by two sets of individual and investigation agencies. Some states require applicants to be at least 25 years of age, behave in a good manner, have no bad records, and have worked for a private investigative agency for five years, or in a federal government investigation agency, civil defense agency, or state and municipality. For 10 years of experience in the Fire Bureau of the Fire Department, applicants must pay hundreds to thousands of dollars in application fees, and some states also require a tens of thousands of dollars in opening deposits in case of violations of the rights of others case. This money can be used to compensate the victim for the loss.
1992, China's first private investigation agency was listed in Shanghai. The main members are several famous criminal investigation experts in China. But soon the institution died. Later, a large number of private investigation agencies were registered in major cities such as Beijing, Shanghai, Guangzhou, Chengdu, and Wuxi, but in view of the Ministry of Public Security's notice on prohibiting the establishment of private institutions of the nature of private detectives, they were licensed.
One of the business scopes is engaged in a criminal investigation business, with the name of "civil investigation office" or "information consulting company". The State Administration for Industry and Commerce has already banned "private detective agencies", and it is absolutely not allowed to operate privately. So far, there has not been a similar company registration success. However, due to the interests of the market economy and potential social needs, any ban on the laws of the market economy is difficult to prevent the private investigation industry from booming. Unlike foreign private investigations, most private investigation agencies in China at this stage rarely involve investigation and evidence collection for criminal cases, mainly engaged in civil and commercial investigations.
In August 2002, according to the requirements of the World Trademark Intellectual Property Professional Organization. The Trademark Office of the State Administration for Industry and Commerce has included the "Detective Company" in the new (Commodity and Service Trademark Registration Table), allowing registration of "detective companies". The industry is concerned after China's accession to the WTO. Foreign private Investigative institutions will continue to flood into the domestic market. In terms of the status quo of China's investigation industry, it will be very difficult to compete with foreign counterparts. Chinese society has a strong "official standard" tradition, so the government has great power and functions very broadly, in the field of a criminal investigation, it is basically a state monopoly. In a sense, ancient Chinese social systems and cultural traditions probably did not have the soil and environment for nurturing private investigators. However, economic system reform and market economy developments have provided conditions and opportunities for the rise of the private investigation industry.
First, the rise of the private economy has promoted the diversification of social supply and demand, thus enabling the private investigation industry to have a market for services. It also provides for the development of the private investigation industry mode and experience.
Second, the development of the rule of law in China and the reform of the judicial system are also for the private investigation industry. The concept of providing exhibitions, the lawsuit is to fight the evidence, is gradually gaining popularity, but the parties are neither familiar with the rules of evidence investigation nor the skills to collect evidence, so private investigators who find evidence and collect evidence are their main business.
Third, the private investigation system is an effective remedy in the case that public remedies cannot protect personal interests. Private remedies and public remedies are not completely opposite in modern society. Private remedies can become public remedies. The two can be complementary, and private investigators can play a special role in areas where state agencies cannot provide protection or can not be involved.
Fourth, in terms of programming, Article 170 of the Criminal Procedure Law provides that victims have the minor criminal case proved by the evidence and the victim have evidence that the defendant's violation of his personal "property rights" should be investigated for criminal responsibility according to law. And the case that the public security organ or the people's procuratorate does not investigate the criminal responsibility of the defendant is a private prosecution case. The victim must have evidence proves that the victim is not helping. Under the circumstance, it is not easy to collect evidence materials that meet the criteria for self-indictment. For example, Article 203 of the Criminal Procedure Law stipulates that the victim can appeal against the defendant's sentence, and the same reason, there is no corresponding evidence to appeal. It is difficult to get support. In addition, a small number of public security tortures forced confessions, making false and wrong cases, accepting bribes, dereliction of duty, etc. It also led to some people not being able to obtain fair public relief.
In the above situation, the main duties of private investigators are through public or secret. Investigative activities to obtain all kinds of intelligence or evidence. In short, private investigations in China have space in the field of a criminal investigation. At the same time, the emergence of private investigators has adjusted the disparity between the prosecution and the defense, which is conducive to improving the efficiency of the police. It is conducive to the fairness of judicial trials. There is no doubt that there are many problems in the current private investigation industry in China, such as the lack of professional training for practitioners, and the lack of professionalism and the lack of clear rules and regulations, sometimes violate human rights; The lack of legal positioning in industry management is like underground activity; No approval by the price department, resulting in charges confusion; The law does not clearly stipulate market access standards, which directly leads to confusion and development disorder in the management norms of the industry; The means for obtaining evidence by the investigation institution is easy to violate the law, the evidence proves to be difficult to determine, and it is easy to invade the right to privacy; It is also possible for the investigator to produce evidence that is beneficial to the client or to eliminate evidence that is unfavorable to the client, and to jeopardize the normal operation of the state investigation agency.
For the current private investigation industry, the author believes that we should first change our concept, recognize its legal status, and transfer it from "semi-underground" operation to "on the ground" public operation, and then guide its development and regulate its activities. We can strengthen the qualification management of private detective practitioners by improving relevant laws and regulations and establishing industry self-regulatory mechanisms, strengthen the registration of private investigative agencies and business scope management so that the private investigation industry can serve the society in an orderly manner.
After China's accession to the WTO, foreign private investigative agencies will continue to flood into the domestic market, and facing these conditions. It is imperative to standardize China's private investigation institutions according to law. The rational and orderly development of private investigating institutions protects the legitimate rights and interests of citizens. Reduce unnecessary investment in judicial resources and ease the pressure on police work has a positive effect. Public power itself has the property of expansion and alienation. The establishment of a private investigation system itself reflects the restriction of public power. The judicial practice has proved that although national laws require state organs that exercise their powers of investigation and control to collect evidence in an objective manner, they must objectively collect evidence that is beneficial to and against the suspect.
However, the specific litigation position as the investigation and control organ determines that the public security organs and the procuratorate always deliberately or unconsciously focus on the collection of the evidence of the complaint during the investigation, and the evidence for the defense is often insufficient. This terrible mindset may not only lead to innocence or misdemeanor. In order to overcome the natural deficiencies of the investigation and control agencies in collecting evidence. It is necessary to give a certain right to investigate and collect evidence.
The author believes that under the premise of judging the existence of private investigative institutions, using legal means to regulate it, maximize its social functions, and avoid its possible negative effects, need to consider three aspects:
(1) Improving legislation
With the development of the market economy, the national legal system is also becoming more and more perfect, and the demand for legal services is gradually increasing, such as when public law enforcement agencies are unable to protect individual rights or interests, people will turn to other channels to get help to protect their legitimate rights and interests, therefore, it is reasonable to allow private investigations to exist and develop in China.
The question is how to regulate their behavior in accordance with the law. The focus of legal research should not be too much to ask whether private investigations are easy to infringe on the rights of others, but should explore how to set a series of norms to prevent private investigators from infringing on the legitimate rights and interests of others. Therefore, private investigative institutions must have a sound legal restraint mechanism in order to operate in order and obtain development. Only through the formulation of external laws and regulations, administrative orders, practice disciplines and professional ethics, and other self-regulatory mechanisms. Such as strengthening the cultivation of personnel quality.
From the perspective of laws and regulations, the company has set up a special management department to review the registration and registration of its licenses and to regulate the scope of business operations of the employees of the industry. Clarify the rights and obligations of the private investigation industry itself. Only through the law to clearly regulate and draw a clear line, the law enforcement departments can clean up and investigate those illegal organizations and illegal activities, so that the private investigation industry can develop healthily in a good direction.
(2) Qualification of private investigators
China's current private investigation industry is expanding. The objective existence of the problem is worrying, and the investigation activity set is concealed as confidentiality and a dangerous sub-integration. Therefore, the quality of the ethics of practitioners is very high. Whether an industry can be recognized by the society depends on whether the operation of the industry conforms to the legal norms and the quality and quantity of its employees.
In the early private investigation institutions in China, most of the employees were retired police lawyers who received special training in the investigation. Dare to undertake complex investigations, but until now, due to the high profits of private investigations, many people who have not been specially trained have joined the private investigation team, and even more, have used excessive methods in the investigation process, such as violation of evidence collection behavior, using the evidence obtained to extort the parties, even illegal restrictions on the deprivation of citizens' personal freedom, making the whole industry more chaotic. Therefore, strengthening industry self-discipline and improving the quality of employees has become a top priority.
In view of the current low quality of private survey professionals in China. Relevant departments should consider implementing a private investigation qualification examination system. The author thinks, the qualifications for employment should include three aspects: qualification examination, conduct requirements and professional training. The relevant departments can determine certain conditions and select them through a unified assessment of the applicants. If the results are qualified, the qualification certificate will be awarded. The qualifications are as follows:
a. Legal graduates or other majors with a bachelor degree or above have legal expertise.
b. Pass the survey qualification test.
c. Have the nationality of the People's Republic of China.
d. Be more than 20 years of age.
e. Be able to adapt to the investigation work mentally and psychologically.
f. Have a high sense of moral responsibility.
g. Have no criminal record.
h. There is no hindrance to it.
i. Physiological defects in such work.
After obtaining the qualification certificate, the relevant departments should conduct an inspection of their conduct and conduct a certain inspection period and expire the qualifications. Issue a certificate of practice and grant permission to practice. Private investigations of practicing certificates also require regular training in law and business. The state is responsible for training legal and business knowledge of private investigations through the establishment of investigation schools or by local public security and police colleges, strengthening their professional ethics and practicing discipline education, and improving its quality.
(3) Establishment and supervision of private investigative agencies
The law-established private investigation institution shall establish the opening registration system and conduct formal registration in accordance with the requirements of the industrial and commercial administrative regulations. It is open only after obtaining a business license. The investigation institution established according to the law is required to formulate a responsibility letter for investigating rights and obligations, and clarify the legal responsibility for the illegal investigation. Improve the annual review system of the investigation agency. Strengthen the management of standards. Private investigative institutions established according to the law also need a sound industry management system, such as the establishment of the National Private Investigation Association, as a self-disciplined organization for the private investigation industry, and the implementation of behavior management for private investigations.
In view of the current non-standard private charges, the Price Bureau should set a unified charging standard, and the tax authorities should also strictly impose taxes. At the same time, it is necessary to create a scientific management model. All activities that guide it on a macro level are carried out within the scope permitted by laws and regulations, form an effective social supervision mechanism, establish a private investigation and complaint committee, and citizens have the right to conduct private investigation and practice and complaints about illegal activities. More important is to set up a strict private investigation internal management mechanism, establish a satisfactory private investigation operation mode, strengthen industry self-discipline, improve the private investigation and punishment system, and strive to achieve real control within the internal control system.
Looking at the industry, we should first look at whether the society has a demand for this industry, whether the industry can meet the needs of society, and whether it is beneficial to society or a useful complement to society.
The private investigation industry is a double-edged sword. When using well, it can safeguard the legitimate rights and interests of citizen legal persons and promote judicial justice. If it is not used well, it will endanger personal privacy and social security. The key is to maximize the role of the industry and to prevent and avoid the possible negative effects. The government should not adopt a simple rent-free approach to save trouble or emphasize the inviolability of its authority. Otherwise, things on the surface are more difficult to manage when they go underground. The practice has proved that when a citizen is infringed, public power cannot be relieved and does not allow him to use appropriate means to help himself, which may eventually prompt him to use violent relief, which we do not want to see. At the same time, when we judge an industry, we should not only look at the individual phenomena in this industry.
Any industry may have corruption and crime. We cannot ban accounting practice because for all accounting transactions. Nor can the individual lawyers block the lawyer industry because they help the parties to do perjury. Moreover, it is impossible for all police officers to be laid off because some individual public security officers have forced a confession by torture. So, what reason do we have to prohibit the establishment and development of the private investigation industry?