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Private Investigators Debated

On the first day of this year, Xu’s investigation and consulting firm opened in a small alley in the area of the Temple of Confucius in Nanjing City, Jiangsu Province. The company, which is actually a private investigation agency, provides such services as checking a business’s or a person’s credit rating, collecting evidence on the manufacture and sale of fake products, and private detective work for individuals.

The company is run by just four people—Xu, a veteran with long-standing experience in intelligence work and Xu’s three friends, who were previously employed as a policeman, army scout and lawyer. All have vast experience conducting investigations and collecting evidence.

Xu said he opened the company because he believes the trade has bright prospects and will make good returns. Just one week after the company was established, it had 10 clients.

Investigation agencies like Xu’s are still rare in China. Actually, when Xu applied for his business license, the local administration for industry and commerce was uncertain about the whole matter. In the end, Xu got the license after showing them material confirming the existence of similar companies in Chengdu and Shenyang.

China’s first private investigation agency was established by a group of Shanghai criminal investigators, who mostly conducted investigations related to civil cases. Although this agency soon folded, others appeared one after another in Beijing, Chengdu, Shenyang, Harbin and other cities. China now has more than 100 private investigation agencies.

A report by a Beijing-based media organization stated that many private investigators compete for business by putting up advertisements on the streets. These private investigators, often equipped with mini-cameras and other devices, are at their best investigating on behalf of wives who want to know if their husbands have a mistress. They can be so sneaky that they can sometimes secretly install a camera or bugging device inside the homes of those under surveillance to record highly private matters.

People can currently seek help from private investigators via the web as well. On the home page, c007.com explains that it is China’s first professional legal service site to provide information on civil investigation, which receives 200,000 hits a day. The website is dedicated to preventing crime and cracking down corruption, and views it as an utmost priority to protect the rights and interests of parties concerned. The website also stated that it could conduct investigations regarding civil cases, extramarital affairs, corruption and missing persons, and provide protection for those troubled by sexual harassment. It revealed that it will investigate extramarital affairs by conducting an investigation on behalf of the clients in accordance with the principle of seeking compensation from the misbehaving party according to the Marriage Law, collecting evidence of a spouse’s disloyalty, and safeguarding monogamy. Its anti-corruption investigation service offers to conduct investigations on malpractice and breach of duty, as well as the offer and acceptance of bribes. The investigation of an individual’s whereabouts includes: Helping creditors locate missing enterprises and debtors, and helping the court to investigate the transfer of property.

All Are Illegal

Li, director of the Information Center of Beijing Municipal Administration of Industry and Commerce, said no private investigation agencies have been registered as such in Beijing. He pointed out that companies registered as “information and consulting firms” have exceeded the permitted scope of business by conducting investigation and collecting evidence.

According to the official, no licenses have ever been granted to any private investigation agency in other areas of China. Those currently operating as private investigators usually obtained business licenses by calling themselves “investigation centers” and “information and consulting firms.” No one is sure how long this practice will be allowed to continue, or whether these agencies will be soon closed down.

Currently, the Criminal Procedure Law doesn’t include private investigation in the collection of evidence. This means the State still reserves the exclusive power to conduct investigations aimed at collecting evidence. Given this, private investigators are yet to overcome many legal and practical hurdles before they can boom in China.

“Are there really private investigators in Beijing?” a leading public security official replied with a surprised look when asked about the matter. Zhang, from the Law Department of the Ministry of Public Security, said the ministry issued a notice in 1993 to ban private investigation agencies. The notice said, “Any work unit and individual is forbidden to open, in any form, civil affairs investigation agencies, security affairs investigation agencies and other non-governmental institutions with a nature the same as a private detective firm.” Businesses forbidden include: Handling civil and economic disputes, recovering debts for clients, searching for missing persons, conducting consultation on security technologies, and probing private matters. Now it is quite clear that private investigation activities are illegal in China.

However, the ban hasn’t checked the fast development of the private investigation business in many Chinese cities. Many legal experts are still debating the issue, and some have even questioned and criticized the official ban.

Experts’ Opinions

Jiang Wei, director of the Civil Procuratorial Department of the Supreme People’s Procuratorate, and tutor of doctoral students in Renmin University of China, believes private investigation agencies should be outlawed since they have violated the right of privacy of those being investigated. He said the existence of private investigators is associated with the Mafia and negative influences from Western countries. Those who need private investigators are usually people who have obtained a recent advantageous economic status. People with an average or low income have no need for such services, he said.

Jiang believes that the existence of private investigators may cause many negative impacts, for instance, the infringement of privacy and even the occurrence of tragic accidents. This is because the infringement of people’s rights may lead to conflicts, which could escalate into even bigger disputes, harming social stability, said Jiang.

Zhou Jianian, a doctoral student at the Law School of Renmin University, has traced the history of private detectives. He said private detectives were popular in Western countries in the 18th and 19th centuries because of an ambiguous understanding of the role of the government in police issues. People believed that private detectives were a good complement to the State police, and that was why novels about detectives such as Sherlock Holmes gained huge popularity at the time.

By the 20th century, people’s understanding about the State changed fundamentally. Government investigators’ role in punishing and curbing crime, as well as enforcing laws, became prominent, and the influence of private investigators waned. “Given this, I think it represents an historical reverse to the promotion of private investigation businesses in China,” said Zhou.

Yet some legal experts pointed out that China does have a demand for private investigators, given the limited ability of judicial departments in righting wrongs timely and completely, the chaotic economic order and declining credibility of enterprises. In addition, as a result of fast economic development, traditional morals and ethics are being challenged in an unprecedented way. As extramarital affairs and the keeping of a mistress cause great social concern, and have actually been considered when revising the Marriage Law, the demand for investigating the defaulting spouse is on the rise. Meanwhile, these experts also believe that private investigators may complement the government’s function.

Prof. Zhou Yuanbo, a prestigious civil law expert from Nanjing University, suggested it is not appropriate to rush to a conclusion on whether private investigators, still something new in China, are good or not. As there are no Chinese laws in place to regulate the private investigators’ behavior, he emphasized that they should take legal approaches when collecting evidence. He also made it clear that the court will not accept evidence collected by private investigators, as there were still no laws legitimizing the collection of evidence through such channels.

Many experts believe that private investigators are a double-edged sword. If used properly, they can protect people’s rights and interests; if not, they will harm personal privacy and the security of the State and enterprises.

(Beijing Review 09/05/2001)

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