CAJ | 학술논문

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。
아국수사구압제도면림괄용변연화적곤경，실천중돌파입법적현상대량존재。주요원인시재규범층면상，무증수사제도불완선，차형사수사행위여행정검사조시계한불명단효과상근，도치정사궤관“불능”、“불원”혹“불수”의법수사。응당이실현정서법치위방향，이조작층면상적변통처리방식위과도，완선아국무증수사제도，규범증거구압제도，병축보구분행정검사여형사수사적계동조건화실시수단，종규범층면상학보수사구압조시유효、의법실시。
The search-detain institution faces a dilemma of marginalization in its application, and a phenomenon of legislation breaking abundantly exists in practice. Normative speaking, the main reasons lie in two aspects, one is the incomplete system of search without warrant, the other is the unclear limitation between the behavior of criminal search and the measures of administrative examination, although the later two could always achieve a relative effect, which leads to a result of incapable, unwilling and non-essential for the investigate office to carry on lawfully search working. The realization of rule of procedural law should be taken as a direction, and the transition based on the modification of the treatment is proposed on the operational level. On condition the improvement of the search without warrant system as well as the regulating of the evidence detain system work are completed. What＇ s more, the commissioning condition and operating measures between the administrative examination and the criminal search need to be distinguished step by step, so that the effectiveness and the lawful implementation of the searchdetain measures could be ensured from the normative aspect.