Investigation Forum. Volume 1

Author: Zhao Yongchen et al. / Country:
Publisher:
Publish Date: 2003-06-01
Features: Excerpt (II) Police Stings and Entrapment—Entrapment generally does not result in criminal liability. Under the civil law criminal theory, the actions of public officials in the performance of their duties must meet certain conditions to serve as a legal justification for avoiding illegality. These conditions are: First, the actor must be a public official; second, the official act must have a certain legal basis, and it is generally believed that formal legality is sufficient to justify illegality, while substantive legality does not affect the justification for illegality; third, the official act cannot exceed the actor's scope of authority, and abuse of power should be treated as an illegal act. The actions of public officials in the performance of their duties that meet the above conditions are legal justifications for avoiding illegality. Police sting operations are acts of police or their agents in the process of legally performing their duties to investigate crimes, and thus, under certain conditions, they are legal justifications for avoiding illegality for police and their agents, meaning they are not held criminally liable. These conditions are: First, the actor must be a police officer or their agent; second, their official act must have a certain legal basis, meaning they must formally have the authority to investigate crimes; third, the actions of the police or their agents cannot exceed their scope of authority, such as not manufacturing crimes or participating in crimes. In the United States, police and their agents are generally exempt from criminal liability for sting operations. In the United Kingdom, police sting operations are considered acts of obedience to orders. Acts of obedience rarely serve as legal justifications in criminal law, although some acts are legal when carried out to promote justice under the law, while others are illegal. Subordinates bear strict liability for any unlawful acts they commit in obedience to orders. Therefore, a soldier, sailor, or police officer who violates the law by infringing on someone else's rights cannot defend themselves by claiming their actions were carried out in accordance with their superior's orders or even the King's own orders. If a police sting operation meets all three of the following conditions, the police will not be held criminally liable: First, the person who committed the crime has not caused irreversible significant harm; second, the police have not actually participated in the criminal activity; third, the sting operation has been approved by the police chief in advance. If these three conditions are not met simultaneously, the person who induced the sting operation in the police sting operation should at least be held liable for incitement. Because, although the police or other judicial officials and their agents have the power to investigate crimes, they do not have general authorization to assist or incite crimes. China's criminal law does not specify the criminal liability of the police, other investigators, and their agents in police sting operations. Criminal law theory and judicial practice have paid little attention to this issue. The author believes that social harm is the essential characteristic of crime. The basic standard for distinguishing between criminal and non-criminal acts is whether they have social harm. However, the real world is complex and often involves situations where an act, on the surface, appears to have social harm and meets the elements of a crime stipulated in the specific provisions of the criminal law, but in reality, due to special conditions, the act does not have social harm. Such acts are known as acts that exclude social harm in criminal law theory, including acts of justifiable defense and acts of emergency avoidance. China's criminal law only stipulates that acts of justifiable defense and acts of emergency avoidance are acts that exclude social harm and should be exempt from criminal liability. It does not specify acts such as consent by the victim, acts of obedience, and acts of legitimate business. Criminal law theory and judicial practice generally consider these acts as conditionally excluding social harm. Police sting operations fall under acts of obedience. Therefore, the police, other investigators, and their agents, as long as they carry out orders that comply with legal procedures and cause harm to society, have no criminal intent and should not be held criminally liable. In other words, for police sting operations that meet certain conditions, the police, other investigators, and their agents should be exempt from criminal liability. These conditions are the same as the conditions mentioned above regarding the United Kingdom regarding the inducer of the sting operation not being held criminally liable. Otherwise, the police, other investigators, and their agents should be held criminally liable according to specific circumstances, either in accordance with the provisions of the criminal law on inciters or based on the theory of partial complicity in accordance with relevant provisions of the criminal law.