诱惑侦查的程序控制

为应对日益严峻的隐形化犯罪的挑战,在过去二三十年间的侦查实践中,诱惑侦查得到了更多的应用.尽管2012年修改刑事诉讼法过程中,通过新增第151条的规定试图提升此类侦查手段的法治化程度,但由于法律规定的宽泛与模糊、司法处断原则的失当与片面,诱惑侦查适用过程中凸显出执法无序与司法失范的弊端.解决问题的出路是,在法律解释论层面,应当对合法性判断标准、适用对象、程序控制机制与违法制裁后果予以明确;在司法裁断方面,应当跳出"犯意引诱"与"机会提供"二分法的窠臼,基于我国特有的侦查权规制现状,采用控权最为严格的分离式混合模式,即无论是违反诱发他人产生犯意的主观标准,还是僭越客观标准,即侦查人员使用了过度且令普通人难以抵御的诱惑手法,均属违法.

Procedural Control of Entrapment

To meet the challenges posed by increasingly serious invisible crimes, entrapment has been used more and more frequently by many countries in the past twenty to thirty years. China is of no exception in this respect, especially in the investigation of drug-related crimes. No law had existed in China to regulate police power of entrapment until in 2012 when China revised its Criminal Procedure Law. Although, in the revision of the Criminal Procedure Law in 2012, a new Article 151 was added to the Law in an attempt to increase the rule-of-law level of such investigatory methods, the article itself is too broad and vague and the principle of judicial judgment on entrapment is improper and one-sided. As a result, prominent problems of disorder in law enforcement and anomie in judicial control have emerged in the process of application of entrapment. To solve these problems, China should clarify through the interpretation of law the criterion on legality, the objects of application, the procedural control mechanism, and the consequences of the violation of law relating to entrapment. In the determination of the legality of entrapment, the court should abandon the traditional dichotomy between "incitation of criminal intention" and "provision of crime opportunity", but instead adopt a discrete hybrid approach, by which any use of excessive inducement that is hard to resist by ordinary people in criminal investigation is illegal, whether it fails the subjective or objective test of legality.