An incident occurred late last year created a great stir among the legal circle that was about the judicial interpretation on "Some Regulations Concerning Civil Proceeding Evidence" issued by the Supreme People's Court. It was stipulated that tapes and videos, recorded without the other party's consent, can also serve as evidence provided that they do not violate the general prohibitive provisions, not encroach upon others' legitimate rights and interests, and not infringe public interests and social mores.

This stipulation was quickly made a big issue by some media, which was transformed into "the legalization of stealthy tape and video recording". This being the case, does it mean that private detectives, who live through shadowing and stealthily taking photos and roam on the fringe of law, gain the legal identity, and thus walking under the sun in a stately manner?

The earliest private detective agency after founding of New China appeared in Shanghai in 1992, but it died out soon afterwards. Now there are over one hundred such institutions. But the characters "private detective" can never be found in their licenses, the business private detective engaged in is only "information consultation" or "civilian investigation".

These informally named private detectives are living on other people's privacy. Their biggest business is to help women find out "the third party". Such institutions are generally equipped with micro-cameras and other equipment used for shadowing, stealthy recording and videotaping.

Since the work of private detectives often touches upon others' privacy and even causes negative influence on society, so it has long been put within the scope of prohibition by public security organs and industrial and commercial departments.

In compliance with the "Corporate Law" and the "Measure of the State Council on Registration Management", so far, not a single private detecting agency has been registered in Beijing, says an official concerned. Those practicing private detecting under the signboard of "consultation" or "investigation" have apparently gone beyond their business scope.

While answering a reporter's question, a concerned department under the Ministry of Public Security disclosed that as early as 1993 the Ministry of Public Security issued the "Circular on Prohibition of the Establishment of Non-governmental Organization in the Nature of a 'Private Detecting Agency'".

It is stipulated: the establishment of various forms of non-governmental organizations in the nature of civil affairs investigation office, security affairs investigation office and private detecting office by any work unit and individual is strictly prohibited.

The "business scope" thus banned covers the handling of civil affairs and economic disputes, dunning payment of debts, looking for relatives and friends, consultation on security countermeasure technique as well as investigation concerning personal privacy. So far, the said department has never received any notice on the lifting of the prohibition.

This being the case, why, then, the old topic of legalization of private detective was brought up again?

Huang Song, a presiding judge from the Supreme People's Court, says this is because some media misunderstand the phrase "without consent" and neglect the wording "strict restrictions" contained therein.

Huang made a cautious explanation, saying that the circumstances regarding "without consent" differ in many ways. For example, it is legal for the bank to install video recorders without the depositor' agreement, but it is illegal for anyone to bug other's room. So "without consent" must be interpreted under the precondition of "not going against general prohibitive rules, not encroaching upon others' legitimate rights and interests, and not infringing public good and social morals".

( January 11, 2002)