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The Research of Search Incident to Lawful Arrests

Author: YeZuoJia
Tutor: SunWeiPing
School: Shanghai Jiaotong University
Course: Procedural Law
Keywords: search incident to lawful arrests doctrine of judicial writ administrative checks
CLC: D915.3
Type: Master's thesis
Year: 2010
Downloads: 45
Quote: 0
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Abstract


The doctrine of judicial writ is adopted in most of the legal state, as a search itself may infringe and threaten personal rights, property rights and privacy of citizens. Search incident to lawful arrests, a traditional exception of judicial writ, is important in the modern system of criminal searches for the purpose of balancing the need to combat crime and the rights of arrested persons. Since the United States has formed a relatively complete system of search incident to lawful arrests in the long term of judicial practice, this paper firstly analyzed the theoretical basis, the implementation and scope of the search incident to lawful arrests based on the Federal Supreme Court’s jurisprudence and practice. On the contrary, in our country, the search incident to lawful arrests is deemed as a margin area from the legislation to the practice. Based on the comparison between China and the United States, the last part proposed to improve the system of search incident to lawful arrests in our country from the following seven areas: adhering to the principle of proportionality, clarification of the subject, object, applicable conditions and scope of the search incident to lawful arrests, establishment of a system of emergent warrantless searches separately, prohibition of administrative checks as the alternative way of criminal search, establishment of exclusion of illegal evidence, setting up a relief system for illegal search.

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CLC: > Political, legal > Legal > UNIVERSITY > Procedural Law > Code of Criminal Procedure
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