|
The business has does not have the right to search for customer's body
Author: Xu patriotic article origin: clicks on the number from " famous
document in legal wisdom ": 15Renewal time: 2005-11-7
One customer to one market purchase commodity, his strange behavior caused the market
security suspicion. The security brings the customer to the security room and searches a
person, the business behavior encroached upon customer's right Under this case is such
type case. High valuable husband (in May department store attached company) selected and
purchased one pair of sock and six in the sea store takes a bath the turban. He said
he afterwards again chose one pair of male glove, but he had not paid, but was the trend
sends the shopping bag the machine. High valuably calls him the glove ? pocket in order to
uses ??? this machine. He said he is manipulating the machine the time store security
arrives his side. He said store the person requests him to pass through " the
inspection machine ", also is one kind puts on the store export place machine. If the
belt label commodity appears in its scope, the machine sends out the sound warning. When
the warning resounds, the store person asks high is valuable " how the glove
explains" High valuably said him not yet the guitar shopping activity. The store
person will be high to the store security room, will run into one will call to
breathe out with the person in there them, Hagen tells high is valuable, says he will be
arrested.
Hagen declares, she continuously gazed at high is valuable, sees him to take the glove
also to admit in his ?? pocket, he gazed at periphery him each person. Passes through
several goods when her in him continuously with him, when he prepares the when marquis
which passes through the exportation, he informed the security to hold him, and opened the
inspection machine in his export place. The store other people also declare high valuably
in when intercepts, he in export place, but is not in the shopping bag machine place.
High valuably is arrested, attempts the larceny receives the criminal trial, but the jury
determines him is innocent. Latter he and Hagen files the abuse of authority lawsuit
to the sea, the request obtains compensates with the disciplinary punishment compensation,
the lawsuit form for the illegal detention, threatens and beats. Holds first trial the
judge determines the defendant wins, high valuable appeal.
Appeals the judge says, in this jurisdictional boundary, the wrong arrest or the illegal
detention lawsuit core is one kind of illegal detention. The arrest and the detention
appropriate reason may become effective contradict. Here arrested the official the honest
credit is enough, also was reasonably believes the arrest and the detention right was
effective. The judge said, in front of us in case, if the jury believes the person brining
suit is high valuably completely proves the refined language, and obtains is advantageous
Yu Ta each deduction, then may draw the conclusion, the store detains the person brining
suit is not the honest credit, reasonably believes the person brining suit is the store
thief. But in in fact, the person brining suit explicitly tells the store the staff, when
he also to in his hand thing paying money, leaves to inspect the machine, then yields to
say again, his payment all commodities, but provides the explanation has not been he also
not terminates the shopping. Under these conditions, the court of first instance guides
one to be advantageous to by person brining suit's determination: The arrest is
reasonable, thus appropriately solved the problem.
We now change the person brining suit about the right request which threatens and beats.
We think, one arrests the official may use the reasonable strength maintains one
legitimate arrest. The person brining suit declares, he received beats, the reason was is
used by the person brining suit the ultra strong strength maintains the arrest. The person
brining suit said Mr. Chris Ding is the sea employee, he " is called me to
approach him, lets me ' get up '. He yells to me and restrains my neck. He looks like like
this restrains me, like this compels me on the wall... He uses the hand to obstruct my
body. He took away my wallet ". Afterwards, the person brining suit revised again
right request: Only declares his quilt " sets to and the defendant store agent
instantly is harmful and fear in the aggressive contact ". But the court thinks, the
person brining suit not can prove is appealed the strength which uses surpassed maintains
one time of legitimate arrest the essential limit. The recording indicates, after the
excessive strength use indictment is the person brining suit ponders again supplements in
the appeal. He in this aspect indictment and the card refined language is not bright.
Requests on this point to change the original judgement, is as if too simple, because this
cannot become the substantive basis. The result is maintains the original sentence.
This case actually contains has two lawsuits, one is the customer is suspected steals,
gives the criminal trial, is accused for to steal. In this case, the court determines the
customer wins, he does not constitute the crime; Moreover one is the customer shape
considers the business, thinks business behavior encroaches upon own person power, request
business civil compensation. In this case, the court determination business searches a
person the behavior had not surpassed the essential limit, finally has not supported the
customer.
The business has does not have the right to search for customer's body Actually certainly
does not have the standard the answer, this must look concrete situation. This involves to
two aspects rights: One is the customer personal freedom and the personality dignity does
not receive the infrigement the right, one is the business property inviolable right. Any
right all is cannot despise, the preceding kind of right is called the person power, the
latter kind of right is called the property rights. Enters 20 The after century, the legal
development tendency is the person power first to the property rights. Therefore, the
legal tendency to more protects customer's person power. According to jurist's
explanation, from the ancient times society to the modern society's development, the legal
development pattern was " from the status to the contract "; From the modern
society to the contemporary society's development, the legal development pattern is "
from the contract to the status " pattern. In " from status to contract "
in the pattern, " the status " was refers the ancient times society personally
attaches the relations to the family family's person, " the contract " was
refers capitalism individual is independent and is free, he was allowed to defer to own
wish punishes oneself the property and the person, thus got out of the person attached to
the relations. In " contract to status " in the pattern, " the contract
" the emphasis is individual property right, " the status " is individual
person right. Same with the word, but the meaning is different. Says from the legal angle,
" searches for the customer " the body at least can occur these three kind of
abuses of authority: Does not let the customer depart, possibly encroaches upon customer's
personal freedom, the constitution illegal detention; Searches for the customer body, also
is to the customer body direct contact, possibly can constitute beats; Several valiant
securities make the military force the expression, possibly constitutes 0 Threat.
Moreover, business this kind passes by also possibly causes customer's mental wound,
possibly can constitute the spirit harms. In the business in the case which searches a
person to the customer, these four kind of abuses of authority accompany live, judge 11
discrimination.
Certainly, has the rule has the exception. According to the common law standard, the
business has does not have the right to search a person, must think he uses the strength
is whether reasonable Whether this kind of strength did surpass the essential limit In our
country judicial practice, this type case were more and more many, some cases also were
ever considered was the typical nature famous case, but we in handled when these cases
very simple was as if also rough. Judge must recognize is to the customer person power
infrigement, wants is the spirit harms. If in processes this type case time, our judge
refers one ? outside judge's mentality, that definitely has is advantageous is fine to the
law, thus even better protects the bilateral legitimate benefit.
|
