In the past 15 years, private detectives have appeared in our country and shown a rapid development trend, and the concept of private detectives has been deeply rooted in the hearts of the people. The existence of the phenomenon of "detective companies" has become a social problem in China today, although our country has not yet had clear legislation to indicate the legal or illegal status of the detective industry in our country.
But anyone who pays attention to reality and the future has seen that the practice of detective work in our country is still prevalent.
Industry insiders generally call for the state to introduce corresponding laws and regulations as soon as possible to make the detective industry "justified", and many industry alliance meetings organized by the private sector have tried to appeal to and attract the attention and attention of the top level of the state in this way. Its mainstream view is that although it has many shortcomings in the development process, it is still an indispensable practical need of Chinese society.
our country should no longer exclude private detectives, but should clarify the legal status of private detectives, formulate relevant laws and regulations, and establish corresponding management mechanisms, so that our country's private detective industry can embark on a legal, formal and rational path as soon as possible.
The legal problems arising from the development and growth of private detectives in our country are explained and corrected in detail, and the entire legislation of detective companies is prospected.
The legal issues involved in China's private detective industry legislation can be summarized as follows: first, the acceptance of civil evidence obtained in litigation; second, how to regulate the legitimate rights and interests of others because their behavior is "private remedies"; third, how to carry out industry management and personnel training; Fourth, whether private detectives can intervene in criminal investigations of criminal cases.
The author believes that the biggest judicial obstacle is whether private detectives can intervene in the investigation of criminal cases. The involvement of private investigators in the criminal field will cause a rearrangement of the investigation system, which is obviously illegal under the existing criminal procedure legal system. Therefore, at this stage, private detectives can be excluded from investigating in the criminal field, and only private detectives are granted civil investigation powers. However, according to the development law of foreign judicial systems in recent decades, in order to overcome the natural shortcomings of the investigation and prosecution organs in collecting defense evidence under the single-track investigation system, many civil law countries have paid great attention to giving the defense a certain right to investigate and collect evidence when revising their criminal procedure laws. Judicial practice has also proved that although the laws of various countries require state organs exercising investigative and prosecution powers to act objectively when collecting evidence and collect evidence that is beneficial to and unfavorable to criminal suspects, the specific litigation position as an investigative organ determines that the police and procuratorial organs always focus on the collection of prosecution evidence intentionally or unintentionally during investigations, and often do not take into account the evidence that is beneficial to the defense. This may not only lead to acquittal or heavy sentences for misdemeanors, infringing on the legitimate rights and interests of criminal suspects and defendants, but also may allow guilty people to escape the law and harm the interests of society. Referring to the private detective industry in France and Germany, which refer to the civil law system, the evidence collected by private detectives can usually enter the litigation track after being confirmed by the national investigation and prosecution organs. This provides a theoretical and practical reference for our country to construct the legal status of private detectives involved in criminal case investigations, and at least provides us with a template for how to develop the private detective industry under the single-track investigation system. In other words, we allow the development of private detectives under the single-track investigation system, not the "pioneers" of the world, but there are precedents to follow and learn from. It is believed that with the advancement of the construction of the rule of law in our country, it is expected that private detectives will be given the right to investigate criminals.
As for how to carry out industry management and personnel training. The author believes that we can learn from the legislation and management system of the private detective industry in foreign countries, and strengthen the management of the private detective company industry in our country's formulation of ministerial-level administrative rules or administrative regulations, and clarify the scope of practice, pre-approval conditions, registration system, professional discipline and professional ethics norms, and legal responsibilities of China's private detective companies.
The training of private detectives should mainly include the following: employee background checks, civil procedures, civil damages principles, criminal procedures, collection and preservation of evidence, seizure and control of property, fingerprinting techniques, tracking methods, personal identification methods, industrial investigations, insurance investigations, occupational investigations, detective common sense, crime scene mapping, criminal modus operandi classification, mobile and positioning photography, collection of testimony, secret investigations, pre-employment reviews, investigation methods, writing of investigation reports, investigation of store thefts, intelligence gathering, Secret waiting and testifying in court, etc.
At the same time, the establishment of the legislation and management system of China's private detective industry can learn from the management system of China's lawyer industry. Because the management system of China's lawyer industry is relatively perfect, the industry characteristics of the lawyer industry are quite similar to the industry characteristics of the private detective industry. Therefore, China's private detective industry can learn from the management of China's lawyer industry to implement a combination of administrative management and association self-discipline, and the Ministry of Public Security, as the administrative examination and approval agency of China's private detective industry, is responsible for the license approval and annual inspection and review of detective companies (or investigation companies), as well as the license approval and annual inspection review of private detective practice certificates, as well as the exercise of administrative penalty power. The establishment of a national Chinese Detective Association is responsible for the self-discipline management of the industry by the Private Detective Association.
As for how to regulate the behavior of private detectives that are "private remedies", which can easily infringe on the legitimate rights and interests of others. The author believes that private remedies can be divided into two categories based on whether legal liability should be assumed, namely, private remedies involving criminal liability and private remedies without legal liability. Private remedies without legal responsibility are usually statutory, but may also be situations not expressly provided for by law. For example, Article 21 of the Criminal Law stipulates that emergency avoidance is not criminally liable, but this does not mean that there is no civil liability, and Article 129 of the General Principles of the Civil Law stipulates that if damage is caused by emergency avoidance, the person who caused the danger shall bear civil liability. If the danger is caused by natural causes, the emergency avoidant shall not bear civil liability or bear appropriate civil liability; Private remedies involving criminal liability are obviously prohibited by law. To sum up, if the behavior of a private detective infringes on the legitimate rights and interests of others, he should be held criminally or civilly liable according to our country's law, and it can be adjudicated in accordance with the law.
As for the admissibility of civil evidence obtained by private detectives in litigation. For civil evidence, according to our country's "Rules of Evidence" and the "Civil Procedure Law" civil evidence adveillance rules, the parties can of course exercise their power of entrustment with the help of external forces and entrust private detectives to investigate and collect evidence when there is a lack of evidence provided by private forces. As long as it is a private investigation
