On The Enforcement Of The Protection Of Personal Freedom Of The Accused In The Constitution Of China

Personal freedom is a fundamental civic right in the Constitution. The protection of personal freedom of the accused is an important part of the rule of law in every country. Under the current circumstances of China, there are many problems in the protection of personal freedom of the accused, which often cause unjust and misjudged cases in practice. Although rectified for many times by the Supreme People's Procuratorate, the Supreme People's Court and the Ministry of Public Security, it's hardly effective. The dissertation tries to reconsider the existing problems and their causes through examining the execution of the protection of personal freedom of the accused. Various research methods are used here, such as the induction of models, historical analysis, case analysis and comparative analysis.The author believes that the current model of protection of personal freedom of the accused of our country is mainly restriction of power with power, which is power oriented. In practice this mode sometimes does not function properly. The main reason is that it is difficult to restrict effectively between different powers under the principle of democratic centralism. The current model can be improved through strengthening restriction of power with rights.Article 37 of the Constitution of China stipulates the rights of personal freedom of the citizens, and the conditions of arrest are clearly stipulated in Clause 2. In terms of form, the clauses of the Constitution provide a rare vollstandige Rechtsnormen in the protection of personal freedom, and stipulate obligations and requirements, which is capable of direct application. In terms of content, the three clauses under the Article of personal freedom in the Constitution are closely related to each other and construct the fundamental framework of protection of personal freedom. The terms in the Constitution try to protect personal freedom through restriction of power, and construct the protecting system of personal freedom through the practice of arrest. Through the analysis of the clauses of the Constitution, we can tell that the Constitution adopts a protection model of restriction of power with power, and hopes to protect the personal freedom of the accused by allocating the power of national prosecution reasonably and forming a mutual restriction within the powers. This is a model centered with power and oriented by power, within which the rights of the citizen and the accused are reduced to a secondary and passive status.Criminal Procedural Law put the clauses of protecting the personal freedom of the accused in the Constitution into effect through legislative form. Its main purposes are punishment of crime and assurance of human rights. Protection of personal freedom, a fundamental human right, belongs to one of the purposes of the Criminal Procedural Law. Personal freedom is not only a litigation right of the accused, but also one of the most fundamental rights in the Constitution. The relationship between the two purposes should be handled properly from the constitutional perspective, so that right choice can be made when there is a conflict between them. In this framework of this principle, the pattern of protection of personal freedom of the accused can be reduced to division of labor, coordination and restriction within the three institutions of the Public Security Bureau, the Procuratorate and the Court, supplemented by allocation of rights of the accused. The division of labor is the premise of restriction and the conditions of the protection of personal freedom of the accused. Under this premise, coordination and restriction can be achieved between the Public Security Bureau and the Procuratorate and between the Procuratorate and the Court. The protection of personal freedom of the accused is mainly carried out through the restriction of the three institutions. Allocation and restriction should be understood properly. They should be accomplished within the framework of the system and law, and should not be extended to the extreme. The allocation should be done at the macro level instead of micro or specific level. In other words, the allocation should be done at the level of legislation and power instead of the level of law enforcement, driving at the mutual judicial purpose of the three institutions instead of being put into practice in specific systems. It is thus clear that the Criminal Procedural Law also adopts the model of restriction of power with power supplemented by restriction of the national power with the rights of the accused.In practice, the model of protection of personal freedom established by the legislation of our country has made certain achievements, but the constant occurrence of unjust and misjudged cases demonstrates the problems and insufficiency in the protection of personal freedom of the accused. In practice, violation of the rights of personal freedom of the accused is mainly show in the forms of illegal arrest and detention, detention beyond the legally prescribed limits, detention caused by erroneous judgement, illegal search and extorting confessions by torture. Two important features are found in cases like that of Zhao Zuohai. One is that most misjudged cases were repeatedly returned to the Public Security Bureau for supplementary investigation, and the other is that many misjudged cases were remanded for retrial. Both these features represent the discordance and restriction between the three institutions. However, in almost all these cases, the coordination of relevant departments is observable, and the above mentioned misjudged cases were all concluded through repeated coordination. The fundamental reason for the misjudged cases is that there is still some discordance between the model of restriction of power with power and the principle of democratic centralism of the Constitution, which influences the effectiveness of the restrictive function. On the other hand, the model per se also has some defects, including insufficient allocation of rights and imperfect distribution of power. In criminal procedure, the power allocation of the three institutions is parallel, resulting in an imbalance, weakening of the judicial power of the Court and putting emphasis on the previous phases of investigation and prosecution. The current model and system put emphasis on the restriction of power of decision on arrest and other coercive measures, while ignoring the restriction on detention after arrest. The Procuratorate, which should have taken the responsibility of supervision, lacks security of supporting system and sufficient motivation to supervise other national institutions, especially the application of coercive measures and detention within the power limits of the Public Security Bureau. Insufficiency of allocation of rights results in loss of initiative of rights, and the subject of rights becomes an object under protection. When there is no effective restriction between the powers, and even compromises and transactions begin to appear, it is difficult for rights to become a part of them and have positive influence. In practice, coordinating institutions such as the Politics and Law Committee attach importance to allocation instead of restriction, thus blending the power of the three institutions in criminal procedure. When the restriction does not function properly, the personal freedom of the accused of course can not be protected.Other countries and regions have formed their own practice in the protection of personal freedom of the accused. Through investigation of their systems and the Criminal judicial reforms of some countries, we may get some enlightenment. Other countries and regions often carry out the protection of personal freedom of the accused through combination of the Constitution and the Criminal Procedural Law, and adoption of the model of restriction of power with power and the model of restriction of power with rights. In the procedure of restriction of power with power, they pay more attention to the restriction of judicial power on others.To ensure effective enforcement of the Constitution clauses on protection of personal freedom of the accused, the current model of protection of personal freedom should be improved. The feature of the current model of the protection of personal freedom of the accused of our country is its emphasis of allocation and restriction of power, but due to the limit of the supporting system and the environmental conditions, the protection of personal freedom of the accused is difficult to function effectively. Regarding the problems reflected in the protection of personal freedom in our country, the scholars and practitioners have given detailed analysis and proposed many schemes for improvement, but most of them are directed at localized specific problems, and there is still no profound consideration on the whole about the model of protection of personal freedom, which is probably the real reasons why the personal freedom of the accused is difficult to get enforcement. The problem of model should be solved by another model. On this account, we can consider increasing the content and percentage of rights in the current model, and achieve protection of rights through restriction of power by extension of rights. Rights and power are the fundamental elements of law. Rights are the ultimate source of power, which determines the basic relationship between rights and power to be that power should submit to and controlled by rights. Rights and power are mutually transformable and when one grows, the other would reduce. The above mentioned relationship between rights and power shows that the model of restriction of power with rights is feasible and effective. Of course, on the whole there should be a balance between rights and power.To sum up, the author believes that the enforcement of the protection of the accused in our country should be improved from the following several aspects: give the Citizen the right to initiate the protection model of personal freedom and improve the initiative mechanism of the protection model; consolidate the intervention capacity of the civic rights on the protection model of personal freedom and guarantee the proper operation of the protection model of personal freedom; establish and improve the remedy mechanism of constitutional rights, especially the remedy mechanism of the rights of the Constitution, to ensure effective restriction of rights on power; improve the allocation of power to form effective restrictions between powers, etc. With the perfection of the operating mechanism and content of the model, enlargement of the scope of rights of the accused and consolidation of security of the rights, the power of national prosecution will be given more restriction, and the power of the three institutions will also reduce on the whole. When power is reduced, the relative departments such as the Politics and Law Committee will have less operational space accordingly, and the harm of power abusiveness will also reduce naturally. The new model has its pertinence and applicability in reality.