Research On The Pretrial Detention Judicial Review System In China

Pretrial detention has not only positive functions such as safeguarding the smoothness of litigations, preventing social dangerous behaviors and facilitating detection but also the Pretrial detention but also has the dysfunctions such as violating personal freedom, leading to probable torture, resulting in miscarriages of justice, the disadvantages similar to cross infection of short-term freedom penalty, going against the resocialization of criminal suspects, leading possibly to an charge-defence imbalance, affecting judicial judgments, conducting conviction and punishment through arresting and kidnapping. To control the pretrial detention, according to the theory of power restriction, we need a power control and review of pretrial detention. From the outside, the general establishment of the judicial review system.In order to reduce the application of pretrial detention, so as to solve the judicial practice already serious detention normalization and normalization of the custody of the derivatives of extended detention, improper detention, illegal detention and other infringement of citizens’ personal freedom and rights of the phenomenon. 2012 "Criminal Procedure Law" conform to the international trend of judicial, judicial review system of pretrial detention is to be perfect. Conditions such as the refinement of the guaranteed pending trial and residential surveillance, in the legislation of arrested and released on bail pending trial or for residential surveillance, the applicable conditions of distinction, to review the arrest procedure of a certain degree of litigation reform, from both sides to a certain extent transformed into third party program, and authorize the procuratorial organs were captured after detention review the necessity. The revision of legislation, in general reflects the pretrial custody judicial review and litigation reform, provide a more judicial remedy, the inhibition of pretrial detention excessive application and progress has historical significance. However, there is still a lack of judicial review of the public security organs of the public security organs, the lack of judicial review, the review of the procedures for the administrative examination and approval, the lack of judicial review; the need to review the issue of the lack of rigid and other core issues of the system. This also determines the new "Criminal Procedure Law" promulgated, it has led to the disappointment of the academic community, it is not applicable and can not change the application rate of pre-trial detention, pretrial detention changes difficult and other real difficulties.Based on the topic- Judicial Review of Pretrial Detention in China-To Build Chinese Model of Pretrial Detention Prosecution Control, this paper studied the concept, characteristics and functions of pretrial detention, and the theoretical foundation of the pretrial detention judicial review, also constructed the theoretical fulcrum for the study. The paper also made a comparative study with the foreign judicial review patterns of pretrial detention and got the conclusions of the comparison. It mainly discussed the necessity and feasibility of pretrial detention prosecution control as well as the concrete scheme to consummate pretrial detention prosecution control in China, so as to realize the unification and balance between fighting criminals with criminal prosecution and protecting human rights through the and no-blind-spot control of procuratorial authority against the whole process of pretrial detention. Finally this paper discussed the necessary supporting measures of implementing procuratorial control.The academic circles have done some research on the perfection of the judicial review system of the pretrial detention in our country. However, the existing research mainly deals with pre-trial detention system and in the pretrial custody control argumentation of judicial review, only choose the subject argument, and the lack of macro pretrial detention reform of judicial review and improve the overall design of the thinking and research. On the way to choose the theory and the western theory and the reality of China, the system of comprehensive improvement of less research.Based on the topic- Judicial Review of Pretrial Detention in China, this paper studied the concept, characteristics and functions of pretrial detention, and the theoretical foundation of the pretrial detention judicial review, also constructed the theoretical fulcrum for the study. The paper also made a comparative study with the foreign judicial review patterns of pretrial detention and got the conclusions of the comparison. It mainly discussed the necessity and feasibility of pretrial detention prosecution control as well as the concrete scheme to consummate pretrial detention prosecution control in China, so as to realize the unification and balance between fighting criminals with criminal prosecution and protecting human rights through the and no-blind-spot control of procuratorial authority against the whole process of pretrial detention. Finally this paper discussed the necessary supporting measures of implementing procuratorial control.Specifically, this paper is divided into eight parts:Introduction is mainly to summarize and introduce the topic-selection background and significance, status, framework and methods of the paper.Chapter Ⅰ Basic theory of pretrial detention judicial reviewFirst, it defined and elaborated the concept and characters of pretrial detention. Second, it studied the function of pretrial detention by the method of function analysis, and found that pretrial detention has not only positive functions but also has the dysfunctions. Third, this paper discussed the concept and characteristics of pretrial detention judicial review. Finally, it discussed the theoretical basis of pretrial detention judicial review.ChapterⅡ Comparative research of pretrial detention judicial reviewIn despite of the difference of lawsuit value, legal culture and legal tradition, under the background of increasingly fusion, reference and absorbing between international criminal justice systems as well as the soaring voice of human rights safeguard, both the two legal systems apply the compulsory measures of pretrial detention, which all reflect the value pursuit of paying attention to both human rights protection and crime control. For both countries of Anglo-American law system and continental law system, the original purpose of applying pretrial detention is to achieve the normal operation of lawsuit activities under the premise of protecting human rights. Between the two law systems there are commonalities such as separation of arrest and detention, neutrality of detention place setting, plenty of detention reasons, judicial authority and endurance review suitable for compulsory detention measures, effectiveness of relief methods.Chapter Ⅲ the review of judicial review of pretrial detention in ChinaThe status quo of the judicial review procedure of pretrial detention in our country is summarized. Secondly, it analyzes the existing problems in the judicial review of pretrial detention in China, the lack of judicial review in the criminal detention, the lack of judicial review of the review, the necessity of the system is not perfect. At last, the paper introduces and analyzes the theoretical research status of the judicial review of the judicial review of our country’s scholars.Chapter Ⅳ the general idea of reform and perfection of judicial review of pretrial detention in our countryFirst of all, the author puts forward the reform and improvement of the judicial review of pretrial detention in our country should adhere to the three principles, the principle of the constitution, the principle of practice, the international perspective, the implementation of the reform of the principle of part of the law. Secondly, the author puts forward that we should insist on the three approaches in the reform of judicial review of pretrial detention in our country, in order to restrict the rights, to restrict the power and to restrict the power of the procedure. At last, the author puts forward the feasibility of establishing the procuratorial review of the pretrial detention of our country.Chapter Ⅴ Concrete scheme of improving pretrial detention procuratorial control in ChinaIn this part, the author systematically constructs the way of procuratorial control of pretrial detention. First of all, the criminal detention procedure is the origin of pretrial detention, and the source of pretrial detention. In this paper, the author has carried on the construction of the procuratorial control of the criminal procedure, the procedure of the procedure of the criminal procedure, and has the three party. Secondly, the review of the procedures for the introduction of the hearing in the arrest process, the judicial reform, to achieve the pattern of the three party, the procuratorial organs in the middle of the referee. Again, the author makes a detailed and perfect of the necessity of the post detention detention.Chapter Ⅵ Supporting system related to pretrial detention prosecution controlIn order to ensure the effective control of prosecutorial authority to pretrial detention, related supporting system is necessary to maximize the function of pretrial detention procuratorial authority control. First, improve pretrial detention alternative measures, analyze the problems existing in recognizance system and residential surveillance system, and put forward the path of improvement. Second, establish the procedural punishment system. Third, strengthen the Access to Legal Advice. Fourth, implement the independence of detention centers. Fifth, build a scientific assessment system. To build a set of scientific and reasonable assessment system may inspire the enthusiasm of the undertakers, is conducive to the coordination and advance of arrest necessity review and post-arrest detention necessity review, can guarantee the basic human rights of criminal suspects and promote the fairness of justice.The conclusion part sums up the author’s opinions.