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The Research On Review System About Detention Necessity

Posted on:2016-11-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:L WangFull Text:PDF
GTID:1366330482957956Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The level of caring for and protection to citizens'constitutional right by Legal system reflects the development level of one country's judicial civilization. Arrest is the most severe coercive measures in criminal proceedings. Because of China's implementation of the Detention-arrest system, Detention is the natural extension of the arrest, arrest means personal liberty for alleged offender over a long period is deprived. Therefore, the application of detention measures directly impact the realization of the state penalty right and the protection to citizens'constitutional rights. With the progress of social civilization and the deepened concept of protection of human rights, the public becomes more and more vigilant to the abuse of detetention, and the improvement of detention review system has become a major concern. Subject to the impact of terms of reference of the pattern of litigation and the patterns of action via "investigation Center", China's criminal judicial practice has witnessed a more general and higher rate of custody issues. "catch"?"bet" has once become the normal criminal procedure. While, due to failure of prosecutorial supervision mechanism and missing of right relief mechanism, practice also exists change difficulties for forced measures, and extended detention, long bet not summary and high custody rate, prosecutorial organas national of legal supervision organ, should constantly strengthen consciousness of human rights guarantee, supervision and restriction to the custody review right, so as to make custody measures finally became balance lever between personal liberty and social public order and guarantees human rights and punishment crime.In recent years, the Supreme People's Procuratorate has trialed in some Chinese procuratorial organs the necessity of detention review mechanism and received good result. The new code of criminal procedure has established the system of prosecutors to review the necessity of detention, strengthen the protection of human rights for the criminal suspect or defendant, reflected the progress of the rule of law and at the same time refined the function of legal supervision of procuratorial organ. But judging from recent three-years-practice, there are several specific issues for detention necessity review system in the subject of review body, review object, review procedures and relief mechanism etc. To enhance the operability of detention necessity review system, the essay, by the combined method of theory discussion and practice research, has selected the practice executed in h province s city, whose prosecutorial organ carried out the detention necessity review, has made legislation analysis and empirical study to China detention necessity review system for, referred to United Nations criminal judicial guidelines and to extraterritorial rule of law national of related system, based on China prosecutorial reform requirements, and proposed the general thought and specific measures to improve China detention necessity review system, with an aim to facilitate the effective implementation and smooth operation of the system in practice.The essay has analysed in five chapters.The first chapter "overview of the necessity of detention review system" is divided into three sections. First section has defined the concept of detention necessity review, respectively connotation and features of detention, detention review, and detention necessity review has analyzed and defined, it also distinguished the related concepts in Western legal socity law national and China; second section focused on China detention review system's development history, mainly on China detention review system's three stages of prototype, and establishment and development; third section is about nature and function of the detention necessity review In the former part, From the legal supervision mechanism and relief mechanism, the necessity of detention review system were identified. The latter part has introduced the right restriction function, power relief function and functional separation function for detention necessity review.Chapter ? "theory of the necessity of detention review" is divided into two sections. First section is about legitimacy for detention necessity review, it has mainly stated innocence presumption thought, due process concept, power checks and balances theory, and the indemnificatory to Criminal Law, and analyzed inner legal principle; second section is about the principles for detention necessity review, respectively about proportion principles, detention exceptional principles, judicial review principles, procedure statutory principlesThe third chapter "comparative study of the necessity of detention review system" is divided into four sections. First section United Nations criminal judicial guidelines on custody problem mainly about custody legitimacy and proportion principles, custody necessity principles, custody judicial review, and right relief for the person under customdy; second section is about legislation and practice in Continental Law system countries, mainly analyzed related system in Germany, France, and Japan and introduced custody necessity review system in continental law system countries; third section legislation and practice of Anglo-American Legal system, it has mainly introduced United States and United Kingdom related system, and commented on main features of detention necessity review system under Anglo-American legal system; fourth section is about the revelation of United Nations stipulations and the extraterritorial system on China, extraterritorial rule national on guarantee to citizens'personal freedom and other right has formed systematic theory results, while United Nations f Convention and international legal file is, United Nations as world peace power of international organization, committed to promote basic human rights and freedom general respect and benchmark to follow, And worked as normative legal documents with basic human rights standards, the United Nations rules and extraterritorial system t has many reasonable factors to use for reference, characterized by "writ" and bail system, sufficient grounds for detention, pre-trial detention in accordance with the proportionality principle, diversified forms of relief, implementation of strict judicial review and litigation review mode.The fourth chapter "practical considerations of necessity of detention review system" is divided into three sections. First section is the the objective description of legislation background for China detention necessity review system of, mainly about China detention review system status and China detention necessity review pilot situation; second section is about the law stipulation and analysis for China Detention necessity review system, mainly from legal interpretation and detention necessity review system value comment; third section is about the in-depth study on practice status after China detetion necessity review system was introduced. It has selected the procuratorial organs in S city of H province to carry out analyses to the necessity of detention practices, and summarized legislative and judicial level problems for the necessity of detention review.The fifth chapter "improvement of detention necessity review system" is divided into four sections. First section has proposed a general planning to improve the detention necessity review system based on above stated analysis, mainly about improvement method for custody necessity review system, custody necessity review right jurisdiction, and convergence of custody necessity review system and existing system;second section discussed custody necessity review operation mechanism,mainly including review kickoff, review object, review content, review standard, review process, review effectiveness, review term, and review relief etc. Third section discussed custody necessity review proving mechanism, mainly including the establishment of custody necessity review proving object,proving responsibility, proving standard, proving procedure; fourth section is to improve supporting mechanism for custody necessity review,mainly including alternative measures, implementation of pre right advice and post reasoning system, setup of custody-free risk prevention mechanism, establishment of information sharing mechanism, introducement of internal and external supervision mechanism, and creating scientific assessment mechanism.
Keywords/Search Tags:Detention, arrest, Detention necessity review, proceedings supervision, right relief
PDF Full Text Request
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