Deconstruct and Reconstruct the Concepts of Search
Date Issued
2014
Date
2014
Author(s)
Yu, Chien-Te
Abstract
Many people believe that to conduct a search, the requirements of ‘warrant’ and ‘probable cause’ should be met under the Code of Criminal Procedure. However, the investigative techniques are multivariate and its influence over people’s constitutional rights is also diverse. Thus there are some doubts about whether the uniform requirements could really safeguard people’s constitutional rights, and whether it satisfies the need for investigative efficiency. In fact, the Principle of Proportionality, as a balancing constitutional jurisprudence, could be the criterion for judgment which harmonizes and reconciles the interests between the individual and the country evenly. In other words, it takes both the protection of human rights and the preservation of investigative efficiency into consideration.
As mentioned above, the requirements of ‘warrant’ and ‘probable cause’ are the preconditions for conducting a search. But defining the ‘search’ has always been a topic that has sparked off considerable debate between courts and academia. Considering the kinds of constitutional rights a search mainly affects and the nature of it, here I conclude with ‘The Defensive Function of Constitutional Rights Theory’, hoping we could correctly and precisely comprehend the concepts of the search, and could cope with the updating development of modern searching techniques. Moreover, it justifies the ‘exclusionary rule of evidence’, and strengthens the relationship between the Code of Criminal Procedure and the Constitution.
Although there are some defective Articles in the Code of Criminal Procedure, there are still some Articles that could regulate the searches. Relatively speaking, many administrative actions are searches in their nature, but there is still a lack of related regulations today. In this regard, I suggest that Article 23 of the Constitution and Article 7 and Article 4 of the Administrative Procedure Act, the Principle of Proportionality, would serve to regulate this kind of actions. Thus it will not only realizes jurisprudence of search, but also eliminate the loopholes in the principle of rule of law. In addition, it will prevent our government from overextending its power and conducting illegal searches in the disguise of administrative actions as well.
Subjects
搜索
令狀
相當理由
行政調查
比例原則
基本權防禦功能理論
SDGs
Type
thesis
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