Since the 1930s, the United States has not yet formed a unified national defense standard to identify traps. However, the academic and judicial circles basically recognize two standards: subjective method and objective method. The former pays attention to the defendant's intention and pre-disposal. Under this standard, to judge whether the trap is established, "a line must be drawn between reckless innocents and reckless criminals who fall into the trap". [6] First investigate whether there is temptation, and then determine whether there is any useless "intention origin test" or "induction test" for the defendant's intention. Whether there is a criminal history is an important factor. If the defendant has the intention to commit a crime and has the preparation and will to commit a crime, it does not constitute trap defense. However, this statement is not complete, and it is difficult to identify in some cases, such as how to apply the crime problem under the repeated demands of peers or friends. The latter focuses on the instigation and instigation of the investigation organ, that is, whether the police's power is used properly or not, and whether people who are not prepared to commit crimes are lured by improper and excessive methods. This statement does not link the defendant's criminal record with the existence of the trap. If we only provide opportunities for ordinary people, it does not constitute a trap. However, there is no uniform standard on whether the lure is appropriate or excessive. Most state and federal courts in the United States adopt subjective standards. (7) In this way, it will be judged by a neutral judge or a jury who can freely evaluate the evidence in combination with specific cases (this is not feasible in China, and we dare not try it out).

The author thinks that when we can't draw a definite conclusion from the subjective aspect of the criminal suspect or the objective aspect of the investigation behavior, the problem will be solved by combining the two, that is, adopting the double test standard. We know that subjective psychology is the purpose of judgment, and objective behavior is the basis of judgment. Without objective phenomena, there is no subjective phenomenon that can be analyzed. Because people's subjective psychology can't be clear at a glance, and it can't be judged by the actor's own "truthful account", we must make a comprehensive judgment through a series of objective appearances such as specific seduction means, the individual data of the lured person, and the interaction between the two sides. Of course, objective standards are only applicable when subjective standards are difficult to judge.

In the United States, who decides whether the trap investigation is established is also a controversial issue: when legal issues are involved and the evidence is sufficient, it is decided by the judge rather than the jury (objective standard theory); It is up to the jury to decide whether the investigation organ will implant guilty intentions into the hearts of innocent people (subjective standard theory). (8) See Ma Yue: A Legal Summary of Temptation Investigation in the United States and Japan, People's Justice, No.7, 2000.

⑵ See Ma Yue: A Legal Summary of Temptation Investigation in the United States and Japan; Ma Tao: "Analysis of the Legality of Seduction Investigation", Criminal Law of China, No.5, 2000; Lu Zhenyang: Research on Temptation Investigation, Journal of Guangxi University of Political Science and Law Management, No.4, Vol. 16, 2001; Hang Zhengya: A Preliminary Study on the Nature and Legal Responsibility of Temptation Investigation, Journal of Hangzhou University of Commerce,No. 1 2002. Professor Long Zongzhi didn't clarify this point in the article "Temptation Investigation and Investigation Trap".

(3) See israel, Camusard and Laffer, Criminal Procedure and Constitution, Western Publishing Company 1989, p. 207.

(4) See Ronald N.Boyce and Rollin M.Perkins, Cases and Materials of Criminal Law and Criminal Procedure Law, Foundation Press. Limited by Share Ltd 1989, No.7, P842.

5. See, Sun, On Temptation Investigation, Commercial Law Research No.4, 200 1. Japanese scholars generally divide temptation investigation into two types: one is that the seducer contacts with the seduced, causing them to commit crimes intentionally, which is called criminal intentional induced temptation investigation. Second, the tempter provides the seduced with the opportunity to commit a crime, which is called opportunity-providing temptation investigation. See Taguchi Shouyi, Darren Liu, etc. Criminal Procedure Law, Law Press, 2000. The investigation trap in the United States is actually a temptation investigation induced by criminal intent.

[6] The United States Supreme Court acknowledged this when citing Solles in Sherman case. See ibid. (3).

(7) See Criminal Law: Principles and Cases, Western Publishing Company, 4th edition, p. 65438.

Being see (4) P847-848.

(9) Most judges of the Supreme Court of the United States agree with the theory of "of course exception" and think that the reason why there is no guilt is a self-evident exception of criminal law; A few judges hold the theory of "social policy" and think that the accused who fell into the trap is guilty but not convicted because of policy considerations, so as to prevent the police from engaging in such reprehensible behavior. But they all unanimously confirmed the defendant's innocence. See Zhu: American Criminal Law, Peking University Press, 1996, page 130.

(10) Only when the following three conditions are met at the same time can the police be considered irresponsible: the criminal did not cause irreparable damage; Police officers are not actually involved in criminal activities; This action was approved by the police chief in advance. See Chu: American Criminal Law, Peking University Press, 1996.

(1 1) See Long Zongzhi: Justification Analysis of Temptation Investigation, People's Justice, No.5, 2000.

(12) See He Jiahong and Long Zongzhi's Seduction Investigation and Investigation Trap, in Evidence Forum (Volume III) edited by He Jiahong, China Procuratorate Press, 200 1 edition.

(13) (French) Montesquieu: On the Spirit of Law (Volume I), Zhang Yi, Commercial Press, 1997, p. 54.

(14) (Japan) Taguchi Shouyi: Criminal Procedure Law, translated by Darren Liu, Zhang Ling and Jin Mu, Law Press, 2000, p. 64.

(15) When officials take bribes, we should use temptation to investigate (prohibit) with caution, because it will bring many side effects: too much involvement will damage the image and stability of the regime, make cadres feel insecure, and form a so-called political panic, fearing that this means will be used as a means of political attack and serve the improper purpose of framing dissidents. See Long Zongzhi: Five Theories on China's Criminal Justice, Sichuan University Law Review, 200 1. (1) edited by Xu Jingcun: Criminal Procedure Law, Law Press, 1997, 1.

(2) Chen Guangzhong: Criminal Procedure Law, Peking University Press, Higher Education Press, 2002, p. 1 p.

(3) Fan Chongyi, Zhou Shimin and Liu Genju: A Course of Criminal Procedure, China University of Political Science and Law Press 1998.

Year edition.

(4) People's Republic of China (PRC) Criminal Procedure Law.

Extension: fishing law enforcement

Fishing law enforcement, also known as "fishing law enforcement" or "barb law enforcement", generally refers to the law enforcement method in which the administrative law enforcement departments of our country deliberately take some measures to conceal their identities and induce the parties to engage in illegal acts, so as to arrest them. Its form is similar to "temptation investigation" in some other countries, but its nature is to seek departmental interests by means of deception, which belongs to "power extortion"