Abstract:
Examining the domestic and extraterritorial system of entrapment based on the two dimensions of "identification criterion" and "proof system", it can be found that there are some problems in our country, such as lack of legislative norms, poor judicial operation and lack of theoretical research, and so on, so that criminal investigation and protection of human rights are seriously unbalanced. On the contrary, under the extraterritorial law in which the entrapment theory and practice are more developed, the identification criterion has developed from a single subjective criterion or objective criterion to double criterion of mixed criteria or separated criteria, and the unique proof mode is formed on the basis of the procedural defense or the substantive defense. Therefore, as for the judicial system and practice of our country, some effective ways were proposed to solve those problems in order to restrain illegal entrapment:first, breaking the traditional dichotomy model and adjusting the boundary between legality and illegality of entrapment; secondly, solving the disputes between the subjective criterion and the objective criterion, and establishing the dual examination criterion of the separation of subjective and objective views; thirdly, quantifying the identification elements of the double criterion of separated criteria and coordinating the interactive relationship among the elements; finally, correcting the burden of proof in alienation and clarifying the burden of proof and the criterion of proof between two parties of prosecution and defense.