Law enforcement agencies around the world also use similar methods, such as the police playing addicts to buy drugs from drug dealers. But "trapping" has strict control requirements. First, the trapping object is the criminal suspect; Second, we have mastered some evidence; Third, the facts at the time of entrapment cannot be used as evidence of a crime. In other words, the scenery itself can't be evidence of crimes.
Civil law countries also have strict restrictions on this. Japanese law prohibits law enforcers from luring the parties with illegal intentions in order to obtain evidence, because this is an infringement of the personal self-discipline of the parties by state public rights. [Edit this paragraph] The root cause of fishing law enforcement is law enforcement economy.
Lured by the economic interests of law enforcement (such as rewarding drugs according to quantity, investigating illegal cars, prostitution, gambling, etc. ), our "fishing law enforcement" is likely to flood in administrative law enforcement, criminal investigation and other fields. The problem that happened before us is not the most serious. As far as investigating and dealing with illegal cars is concerned, in March 2008, the driver of an illegal car in Fengxian District, Shanghai was taken into the "law enforcement ambush zone" by the so-called "female investigator" and stabbed the female investigator in the car with a knife in front of law enforcement officers (Oriental Morning Post, March 9, 2008). In the past, there were incidents in Shanghai where black car drivers kidnapped so-called "barbs" to vent their anger.
Earlier, the media also revealed that in Gansu Province, in just one year, some policemen from three different public security organs cooperated with the same drug dealer to create three "drug trafficking cases", which led to two people being sentenced to death in the first instance and one person being sentenced to death in the first instance. Even in broad daylight, it was extremely vicious and creepy.
Individual law enforcement departments and law enforcement officers, with extremely dirty interests, do everything possible to lure law-abiding citizens to "break the law" and take the trap as evidence of law-abiding citizens' crimes, which not only destroys the seriousness and fairness of the law and the society's belief in the rule of law, but also seriously corrupts the social atmosphere, tears the basic harmony and mutual trust among members of society, and makes social morality go from bad to worse. People's kindness, sympathy and friendship are forced to put on the heavy armor of self-protection, which makes those societies. At the same time, it is also possible for citizens to fall into danger and anxiety anytime and anywhere, and even life safety cannot be guaranteed!
Driven by the interests of law enforcement economy, "fishing law enforcement" is constantly expanding its "law enforcement power" to the society, and the commission mechanism allows relevant departments to openly recruit a large number of "hooks" in the society, that is, so-called "investigators" and even "social people with a sense of justice". They ruined the reputation of "justice" and "sense of justice", gave birth to a large number of parasites who did not engage in productive and creative work, and brought the credibility of law and public power to the brink of collapse.
It can partially restore the justice of being exiled by individual cases, but it can't shake the root of fishing law enforcement's abuse of power. To eradicate fishing law enforcement, we must first sentence him to death for "economic law enforcement" at the source, and strictly restrict public authorities from "hiring" various social personnel in various ways. On the one hand, the law stipulates that national civil servants are not allowed to enter unless they take the exam or have a preparation; On the other hand, any law enforcement agency is supported by taxpayers, and there is no reason to "commission according to performance" like a company.
Although "Administrative Punishment Law of the People's Republic of China" implemented by 1996 stipulates that "any administrative department has no right to deal with fines and fines without permission and must turn them over to the state treasury", local finance generally returns fines and fines to administrative law enforcement departments at a rate of 40% to 50%, and relevant departments return them to branches at a rate of 46% to 55%. This method is commonly known as ". This is tantamount to the government and its functional departments and individuals jointly setting a trap to exploit drivers. In the face of such a strong opponent, how can most drivers fight back except being punished?
It can be seen from this interest chain that the starting point and source of interest is the local government, which does not give the traffic law enforcement department funds or gives little funds, which is not enough to maintain the survival of the department, but hopes to generate income; The middle end is the law enforcement department, and the income generated by law enforcement units is linked to the performance appraisal of units and leaders. The more income is generated, the more commissions and government finances will be returned, and the more bonuses and benefits will be given to leaders and employees. At the end are law enforcement officers, and the unit decomposes the income-generating task into each law enforcement officer, which is linked to personal bonus, welfare, assessment, promotion and salary increase. In this way, between local governments, law enforcement departments and law enforcement personnel, a * * * body with public power and private interests is formed, and the goal of the * * body and its members is to maximize their respective interests, and they will all cash in. Moreover, law enforcement departments now have a weak sense of the rule of law and a serious sense of privilege, and they can do whatever they want. Driven by interests, the law is not taken seriously, which leads to repeated prohibitions of substituting punishment for law. [Edit this paragraph] Mode [1] The first mode can be called "exposure mode". That is, the parties themselves have attempted to violate the law or commit crimes, which have been implemented but have not yet been revealed.
The second way we can call it "temptation". That is, the parties themselves do not have any illegal and criminal intentions, and law enforcement departments take action to induce the parties to have illegal and criminal intentions.
The third way we can call it "framing". That is, the parties themselves do not have any illegal and criminal intentions, and the law enforcement departments take plans to frame the parties so that the parties have illegal and criminal intentions. [Edit this paragraph] Social response experts questioned that the act of "fishing" law enforcement itself was also questioned by jurists. Professor Jiang Ming 'an, an expert in administrative law at Peking University Law School, believes that administrative law enforcement should conform to the principle of administration according to law promulgated by the State Council in 2004, and should be legal, reasonable, due process, honest and trustworthy, with unified powers and responsibilities, and should not be carried out in a premeditated manner. Yang Jianshun, a law professor at Renmin University, believes that administrative law emphasizes the legality of obtaining evidence, requires an objective and comprehensive investigation, and the means of investigation and evidence collection should be legal. According to the requirements of the national tax system, it is reasonable to take a taxi, but it is not advisable to take the method of "fighting poison with poison". "When cracking down, we must strictly distinguish between cracking down on black cars and' taking a good car'."
Professor Ying Songnian, president of china law society Administrative Law Research Association, questioned that there is no clear legal definition of "illegal business". In western countries, in order to save energy, the government also advocates carpooling. If helping passers-by is also considered as "illegal operation", who will dare to stop me from getting sick and asking for help in the future? Professor Ying Songnian believes that "pulling the key with a hook" is a compulsory act, which must be authorized by law. He seems to be cooperating with law enforcement, but he has no legal authorization. What's the difference between that and robbery? It seems that the coordinator and the hook are also involved in law enforcement, so it is necessary to clarify the subject of law enforcement. Professor Ma Huaide, vice president of China University of Political Science and Law, believes that people can collect evidence, record and report, but administrative compulsory measures such as pulling out car keys must have legal administrative authorization, and they cannot entrust others to do it at will, let alone rely on the market to help them catch cars.
Although law enforcers have found many reasons to show the legitimacy of law enforcement, they can't hide the illegality in essence and procedure, as well as the interests behind it. Looking back on the results caused by similar behaviors, it is found that there are bigger "fish" hanging on the "hook" besides the parties-that is, law, morality and people's kindness. A private car advocate in Shanghai even attracted the disaster of "illegal operation" because of his sympathy. On the way to work, Mr. Zhang was moved to go on the road with sympathy because of the stomachache of passers-by. As a result, the "passenger" took out his key, and seven or eight uniformed people outside the car dragged Zhang out of the car. They were also handcuffed behind their backs, grabbed by their necks and searched their driver's licenses and driving licenses. The other party told Zhang that they were from the urban traffic law enforcement brigade and asked him to pay and get back to the car. Under various pressures, Zhang finally paid 1 10,000 yuan to get the car back. In recent years, cases of law enforcement departments punishing ordinary citizens for "fishing" have emerged one after another, and even drivers have killed "fishermen" in Shanghai. [Edit this paragraph] It is not an overnight event for society to endanger the establishment of the rule of law order. In the process of establishing the rule of law order, the behavior of law enforcers has attracted much public attention, and it is also the easiest to influence the public's concept of rule of law. Strict and fair law enforcement by law enforcers not only establishes the authority and image of law enforcers, but also establishes the authority and image of law. When a law enforcement department "enforces the law" for self-interest, especially when it induces law-abiding people to "break the law", the society will have strong doubts about the law. Law enforcers not only affected the image of this department, but also affected the image of the law, shaking people's concept and confidence in the rule of law. The "fishing" behavior in administrative law enforcement will not only confuse the public with law-abiding, but also deal a blow to social morality. When "fishing" becomes the norm, the crisis of social trust will naturally increase, and the virtue of mutual assistance and friendship will also lose its living soil in "fishing". Law enforcement "fishing", the law-abiding people are of course fish, and so are law and morality.
Judging from the experience of countries ruled by law, we should strictly limit the temptation to obtain evidence. It must not be operated by so-called "investigators" or even "social people with a sense of justice", because they often have interests in law enforcement and often "seduce" the parties. This kind of "law enforcement fishing" has torn the simple feelings among members of society and corrupted public morality. Passers-by who are really sick in labor may never get help again.
It may even lead to serious conflicts. For example, in March last year, a "black car" driver in Fengxian District, Shanghai was taken into the "law enforcement ambush zone" by a so-called "female investigator" and stabbed the "female investigator" in the car with a knife in front of law enforcement officers. In the past, there were incidents in Shanghai where black car drivers kidnapped so-called "barbs" to vent their anger.
There is a so-called "proportionality principle" in modern administrative rule of law, that is, administrative means should match administrative purposes. Although "illegal operation" is harmful, its harm is far more serious than violent crime. Therefore, we can't use radical "law enforcement fishing" means to confront. This method not only has many uncertain risks, but also undermines the trust and mutual assistance among members of society, which is really harmful.
Administrative law enforcement needs not only factual justice but also procedural justice. Only by stepping up the legislation of administrative procedures and firmly limiting the power of administrative law enforcement in the cage of procedural justice can "fishing law enforcement" really withdraw from the historical stage. [Edit this paragraph] The Zhang Jun incident.
The "fishing" law enforcement of Shanghai Urban Traffic Law Enforcement Brigade has been questioned by public opinion because it touches people's moral bottom line. This time, the public opinion has risen from the online post "innocent private cars were detained on charges of car theft, and the detention process was brutal and violent". According to the net post, on September 8, 2009, Zhang Jun (pseudonym), a Shanghai white-collar worker, was kindly helping passers-by who claimed to have a stomachache and wanted to go to the hospital, but was recognized as a "black car" to carry passengers by the Urban Traffic Law Enforcement Brigade, and was detained and fined 6,543,800 yuan. Black cars are illegally operated. According to Article 64 of the Regulations of the People's Republic of China on Road Transport, those who engage in road transport business without obtaining a road transport business license shall be ordered by the road transport management institution at or above the county level to stop business; Illegal income, confiscate the illegal income, and impose a fine of more than 2 times the illegal income 10 times; If there is no illegal income or the illegal income is less than 20,000 yuan, a fine ranging from 30,000 yuan to 6,543,800 yuan shall be imposed; If a crime is constituted, criminal responsibility shall be investigated according to law.
It turns out that passers-by is a "hook" of the law enforcement brigade, which is particularly attractive. Hook also forcibly unplugged Zhang Jun's car keys, and seven or eight people in uniform dragged Zhang out of the car. His first reaction at that time was that he was robbed by a robber. He tried to call the police and the phone was taken away. Zhang Jun claimed that his hands were behind his back, his neck was stuck, and his driver's license and driving license were taken away. The other party told Zhang that they were from the urban traffic law enforcement brigade. In the following two weeks, people with similar experiences went to Zhang Jun one after another to tell their similar experiences of being punished for "fishing", most of which occurred in September 2009 14, 15, 16 and 18.
Most of the deceived car owners work for the company, and two of them are private boss drivers. There are different tricks to cheat their "hooks". Some say that "the family members of the car accident are in a hurry to get there", some pretend to be pregnant women who are in a hurry to give birth, and even "hook" a salt bottle to stop the car. As for the process of "fishing", such as deliberately giving them tolls, forcibly pulling out the car keys, "twisting their arms" and taking them away from the car, and detaining the car for a fine of 10,000 yuan, it is consistent with Zhang Jun's experience. In this regard, the relevant departments of Minhang District publicly stated in the TV media that its law enforcement is legal.
It is understood that as early as 1992, when Shanghai began to crack down on black cars, "hooks" appeared. In 2006, the number of people-to-people contacts increased sharply, because there was a reward for reporting, and 500 yuan was rewarded every time. At that time, there was even a vicious incident in which a female "hook" was killed by a black car driver. These professional informers formed an organized group. Generally, there are "hooks" to contact law enforcement personnel, and each "hook" has its own territory. A mature hook can be both safe and well-founded, with a monthly income ranging from three to five thousand yuan to five or six thousand yuan; Hooks can reach hundreds of thousands in the first year. A black car implementation industry chain seems to have quietly formed.