卧底侦查概念评析

对卧底侦查概念的准确界定有利于明确卧底侦查行为性质,划定卧底侦查的边界,从而实现在惩罚犯罪的同时兼顾人权保障之诉讼目的.英美与大陆法系各国大都在广义与狭义分类的基础上界定卧底侦查概念.我国学者多认为卧底侦查宜采用狭义概念,但因其概念所强调要素的不同又区分为诸如“隐瞒程度要素”、“时间要素”、“潜入要素”、“审判证据要素”等不同的卧底侦查概念.在对国外卧底侦查概念比较研究的基础上,采用目的分析法,逐一分析我国卧底侦查的传统概念.传统概念吸收了过多的卧底侦查形式要素,遗漏了诸如欺骗、性质、规范目的等能够反映卧底侦查内涵的实质要素.从规范卧底侦查目的出发,卧底侦查概念宜包含启动原因、侦查属性及规范目的等要素.

Comments on the Concept of Undercover Investigation

An accurate definition of undercover investigation can not only help clear the nature of its behavior,but also help demarcate its border.Meanwhile,the purpose of litigation(punishing the crimes and guaranteeing the human rights) can be achieved.Both the Common Law and Civil Law countries definite undercover investigation based on the classification of generalized sense and narrow sense.Many scholars in China insist that we should adopt the narrow sense concept.But for the discrepancy which is stressed in the concept,there exists different undercover investigation concept,such as "the degree to conceal factors","time factors","submerging factors" and "trial evidence factors".Through comparative research among foreign countries’ concept of undercover investigation,this paper adopts purpose analysis method to analyze and compare our country’s traditional concept.However,the traditional concept absorbs too many form element of undercover investigation,and omits many substantive elements which reflect the content of the undercover investigation,such as the deception element,nature element,and specification’s purpose element.In order to regulate its purpose,the concept of undercover investigation should include the following elements as the reasons why start this investigation,the investigation attributes,and the purpose of regulation.