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Pending Custody System

Posted on:2010-04-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y JiangFull Text:PDF
GTID:1116360278471586Subject:International Law
Abstract/Summary:PDF Full Text Request
Pre-trial custody is custody of suspects or defendants before a court ruling in accordance with law. According to the presumption of innocence principle, any person should be presumed to be innocent without a verdict from court in accordance with the law. Pre-trial custody system is aimed at citizens that are still innocent according to law. In contrast with the majority of systems, pre-trial custody system entails evident conflicts, which are, it not only tolerates custody, but restrains it as well. Therefore, its theoretical basis is not one-dimensional or homogeneous, but two-dimensional and heterogeneous, entailing both tolerance and restriction. Tolerance is embodied in objective truth, state sovereignty and utilitarianism. Restriction consists in presumption of innocence, due process, power restriction, and human rights theories. These two different schools of theories exemplify different values. Objective truth reflects the truth-seeking spirit, while the presumption of innocence and due process emphasize the system' s pursuit of goodness; state sovereignty stand for the concentration and expansion of power, while power restriction is fraught with anxiety and fear for power abuse and expansion; when utilitarianism weighs gains and losses according to maximum welfare of the biggest majority of people, it will inevitably sacrifice minority' s interests; human rights theory holds high the banner of natural rights and delineate bottomline for justice. These values with different and even conflicting orientations are manifested in the theoretical basis for pre-trial detention. To establish a reasonable and justified pre-trial detention system, it is must to sort out the relationship between the conflicting values and balance their contradictions.China' s detention and arrest system vary significantly from that of foreign countries. The present research lays out common features of pre-trial custody systems by studying the process, rationale and purpose of detention, detainees' rights, pre-trial custody power configuration and the duration and release in pre-trial custody systems in major counties with adequate legal system. Analyzed from different perspectives, pre-tial custody system should possess the independence principle, the statutory principle, the principle of judicial review, the custody-comes-last principle, the principle of proportionality, and the principle of effective relief and other basic principles. The independence principle is based on inter-system relationships, isolating custody system from other systems to provide platform for its comprehensive construction; the statutory principle starts from restraining the state power to ensure the legitimatcy of source of power and to enhance the system' s rigidity to prevent abuse of power; the principle of judicial review focuses on the rationalization of power structure, and enhances the fairness of the system through a neutral third party control; the custody-comes-last principle and the principle of proportionality serve the purpose of modestly restraining state power in its orderly implementation through normative operation, to protect normal proceedings without excessive harm to individual rights of citizens, and to enhance the rationality of the system; effective relief principle addresses system design in respect of individual rights of citizens to fully manifest system justice.Pre-trial custody in China has secrious defects in practice, which are reflected in the form of general detention, long-term detention, extended detention, as well as disguised forms of detention and other forms. The essence behind these phenomema is lack of an overall integrity in the system. Causes are complex. Pre-trial custody is both affected by society-based, power-based, truth-based and other traditional concepts, and subject to the constitutional system imperfections, irrational litigation structure, and restricted by a variety of factors such as the institutional environment as well. With the progress of society, it is a must to build an independent pre-trial custody system, to establish and implement basic principles including the independence principle, the statutory principle, the principle of judicial review, the custody-comes-last principle, the principle of proportionality, and the principle of effective relief.
Keywords/Search Tags:pre-trial custody, presumption of innocence, power restriction, independent custody
PDF Full Text Request
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