Font Size: a A A

Elements Of Detention Review Procedures

Posted on:2011-09-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:P YuFull Text:PDF
GTID:1116360332456684Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The detention is the important issues of the criminal enforcement measure system, which drawing on the deprivation of the basic civil rights. Therefore, Extraterritorial judicial review generally will be detained as an important principle of the system, and establishment of a comprehensive review of detention procedures, from the main detention review, the review process, substantial elements and other aspects of the application to be severely restricted in detention, while providing adequate judicial relief, detention system to protect the criminal proceedings to achieve the smooth and the dual role of protecting human rights.The detention is not a compulsory measure in the criminal legislation of our country, which is included in the arrest and criminal in detention, is to take measures to arrest and criminal detention of arrested persons deprived of their longer period of time, was detained in a state of personal freedom . The lack of judicial review of detention, the review body to review the content, review procedures and remedies and so there are big problems. This is caused by extended detention, torture and other illegal detention issues often found newspapers, continues to be sustained, so that our Constitution, Civil Rights in Criminal Procedure Law provisions on the shelf, not in the detention of effective and efficient implementation in practice. With the deepening of the process of the rule of law, in particular the protection of human rights and the implementation of the concept of procedural justice, requires the establishment of the principle of judicial review of detention and the detention review process for building science are growing.In this paper, the existence of detention legislation and practical issues, drawing on reasonable factors extraterritorial detention system, detention review process through the systematic study of the elements, in order to improve the system of detention review some theoretical thinking. This article is divided into six chapters.Detention review procedures outlined in the first chapter. The chapter in three parts, the first part of the detention of the concept, nature, purpose, detention and arrest, criminal detention, and other basic areas of the relationship are discussed. Detained in different countries and regions, although different titles, usually refers to the entry into force of conviction in the court a long time before the deprivation of the suspect, defendant or state measure of personal freedom. The purpose of procedural safeguards in detention as follows: prevention of crime suspects and defendants to flee, hide or destroy evidence, to ensure smooth and effective criminal convictions to be implemented. Detention is the essence of the fundamental rights of citizens of the intervention, but also the negation of the principle of presumption of innocence, if properly applied, will have the basic rights of detainees to cause significant damage. Therefore, we must abide by the legal principle in detention, with the exception principle, the principle of proportionality and the principle of judicial review.In the second part of this chapter, the meaning of the detention review process and elements of the brief. Detention review process is a judicial review process, according to the inherent requirements of the judicial process, detention review process should at least have the following elements: the main detention review, the start of the main detention review process and other participants; detention review matters; detention review, including writing, hearing and trial or hearing mode; proof of detention review mechanism; detention of judicial relief mechanisms.In the third part of this chapter, the meaning of judicial review was discussed. "Judicial review" in either sense in the judicial review can also be used in Administrative Law; you can also refer to both collectively. Judicial review and judicial review have established contact, the two cross each other, judicial review is judicial review of a specific model; judicial review is one of judicial review. There is no sense of our constitutional system of judicial review. Administrative Procedure Law enacted in 1989, will review are limited to the specific administrative acts in general, criminal proceedings in the investigation, prosecution and other special specific administrative act, not included in the scope of administrative litigation cases. Detention and other compulsory measures will be included in scope of judicial review, is the rule of law, protection of human rights principles, the principle of power constraints and the "final decision of justice" principle of the necessary requirement.The second part reviews the main body of the detention. This chapter begins the two legal systems, international criminal justice standards and review of the main detention legislation and practice analysis, which Points out that given the right to extraterritorial review of the detention of judges, and the mechanism is that the independence and neutrality of judges. Our decision will be given criminal detention, public security organs, the decision to arrest the mandate given to undertake the prosecution indictment, impartiality is questioned, also sparked heated debate.Judges review the exercise of the right of detention, must prevent the formation of pre-broken. Therefore, the establishment of detention in court reviews of court, the configuration of detention review the judge responsible for the detention of criminal proceedings in the review function is an ideal model. Can also take a compromise approach, the full court review of a judge is responsible for matters relating to detention or in detention review the judge's challenge system, but also prevent effective way to prejudge. This chapter also determines the start of the main theoretical basis for detention and the start of the main types of issues are briefly analyzed.Chapter III reviewed the contents of detention. This chapter first detained the two legal systems and our substantive elements of the legislation and practice were analyzed. Two Legal provisions for the substantial conditions of detention vary widely, but all contain some common factors: First, the suspect material; the second is the general grounds for detention, including: criminal suspects have fled or have substantial reasons to suspect may flee, substantial reasons to suspect or defendant will be destroyed, forged, altered evidence, or with an accomplice, the witness collusion; third special grounds for detention, the reasons for preventive detention. Fourth, a felony condition is suspected of a crime punishable offense should reach above a certain penalty. In some jurisdictions, such as China, Taiwan, also detained in detention as an element of the need for separately. China must also have evidence of arrest, penalties and the need for three conditions. Legislation and practice the main problems: First, the principle of evidence are too, the lack of maneuverability; Second, conditions for scientific sentence; three necessary conditions is not clear, this condition is rarely considered in practice; Fourth, the detention period designed to detect for the purpose. Improvement of the substantial conditions of detention, arrest and detention premise is to achieve separation, the provisions of the arrest and detention under different conditions.The second part of this chapter discusses the scope of the review of detention. Scope of the review of the detention in detention is the strength of substantial elements of the review. Terms of civil law countries have adopted models of litigation, detention review is stronger than the common law system, but the two legal systems for the scope of the review of detention are stringent restrictions. Scope of the review of the detention of the Criminal Procedure Law does not specify, but allows for "leakage catch" to "hunt." The fourth chapter is the review of detention methods. Extraterritorial detention review are written, words in two ways. Among them, the words of the review method are divided into: "tripartite structure of these" words of the review, "both construction" type of words written examination of the review and the review model. Way of writing and the words advantages and disadvantages, Germany, Japan and a written examination review of the strengths of both absorption modes. China's detention review by the prosecutor in charge of pre-trial stage, in what manner the review, the law does not clearly defined, which generally considered being a written examination. Supreme People's Procuratorate in 2003 requested a review of the decision, approved the arrest, whish should be questioning the suspect. Accordingly, can be understood as adopting a "interrogation mode." Detention of the court review is limited to the trial stage, in addition to changes in detention or release, as well as exclusionary rule to revoke the verdict, review of remand and other indirect methods. No specific procedures for such review, practice, courts review the legality of detention. China's detention review hearing should be taken between the open and closed questioning the non-public hearing between the way applications for authorities and detained suspects and their counsel attended the two sides presented their views.Chapter five is about the detention review proof. Proof of detention review is a procedural proof. Detention review the full freedom of proof applicable, views is not consistent. The "major suspects" of the judge, can not help determine the merits of the case involved, the situation should be different from the proof of the appropriate manner. Hearsay evidence can be used as evidence to determine detention. Confessions of the investigation of arbitrary detention should review the application of the principle, but as long as the illegal collection of physical evidence is true, can be used as a basis to determine detention. Application for authority and the detention of criminal suspects and defendants is the main proof of detention review, the judge does not assume the burden of proof, investigators are in the detention investigation proved that the review body. In civil law countries, the proof of the criminal proceedings were divided into substantive law and procedural law the fact that fact. Procedural law procedural dispute the facts can be divided into requests and procedural matters. Proof procedure should be present in the entire criminal process. At this stage, the procedure of proof procedures based on solid proof. Construction of the procedure should be independent proof system.Burden of Proof and certification standards are the focus of discussion in this chapter. Although the difference between two legal systems legislation, however, most of the major provisions of the criminal proceedings the burden of proof borne by the prosecution, the defense behavior in exceptional circumstances take responsibility. Theory of the prosecution bear the burden of proof is based on the presumption of innocence, which reversed burden of proof burden of proving the defense theory of liability basis. Factors that affect the allocation of the burden of proof include: litigation model; proof of ability to participants in the proceedings; process the ownership interests. China's Criminal Procedure Law of the allocation of the burden of proof not clearly defined. Perfect proof of detention review mechanism must be based on proof of the main body to prove the different objects, scientific distribution of the burden of proof.Standard of proof is to prove that the main use of evidence to prove their claims to the extent that should be. Most of the cases depending on the extraterritorial nature of the litigation stage, proof objects, such as proof of the main body, set a different standard of proof to prove the formation of multi-level standards. China's Criminal Procedure Law does not expressly provided on the standard of proof should distinguish between different stages of the proceedings, evidence for different objects to prove the main body, set a different standard of proof.Chapter VI is the detention relief program. Civil law remedies in detention are: judicial review, by former leader (quasi former leader), and then former leader (especially former leader), exclusion of illegal evidence, appeal or complaint. Even before the Constitutional Court for review. Common law are: to apply for bail, appeal, application for "habeas corpus" to exclude illegal evidence. China's Criminal Procedure Law provides for a remedy in detention, but there are many problems: First, administration of pre-trial relief; second prosecution and the defense of relief inequality; third phase of the trial courts of non-judicial remedies; Fourth, the lack of operational relief program sex. Should establish the liability of the illegal detention system; improve the relief system of detention.
Keywords/Search Tags:Detention, Judicial review, Procedures, Elements
PDF Full Text Request
Related items