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我国搜查扣押制度面临适用边缘化的困境,实践中突破立法的现象大量存在。主要原因是在规范层面上,无证搜查制度不完善,且刑事搜查行为与行政检查措施界限不明但效果相近,导致侦查机关“不能”、“不愿”或“不需”依法搜查。应当以实现程序法治为方向,以操作层面上的变通处理方式为过渡,完善我国无证搜查制度,规范证据扣押制度,并逐步区分行政检查与刑事搜查的启动条件和实施手段,从规范层面上确保搜查扣押措施有效、依法实施。
The system of search and seizure in our country is facing the dilemma of applying marginalization. There are many phenomena that break through the legislation in practice. The main reason is that at the normative level, the system of undocumented search is imperfect and the boundary between criminal search and administrative inspection is unknown but the effect is similar, resulting in the fact that the investigation authorities can not “ ”Search according to law. It should be based on the principle of procedural rule of law and the flexible approach at the operational level as the transition to improve the system of undocumented search in our country and standardize the system of evidence detention and gradually distinguish between the conditions for the initiation of administrative inspections and criminal search and the means of implementation. Ensure that the search and seizure measures are effective and implemented according to law.