Study On The Examination System Of The Necessity Of Detention

This paper review the necessity of detention system as the research object,ensuring access to the international human rights limit detention,as the core concept of the "center" of the trial of the judicial environment,follow the "from the practice,and then return to practice" principle,based on clarifying the necessity of detention review on the value system discount,reflect the necessity of censorship in custody,launches the research from two aspects of entity and procedure,in order to establish the substantive examination system,litigation procedure construction,and establish judicial relief mechanism that the rules established for the path,to promote the custody necessary examination system gradually to litigation,the regulation of a variety of paths are placed under the control of the judicial proceeding,the eventual establishment of the pattern with the core of judicial judgment for the custody necessary examination system.The relevant value analysis of the examination system of the necessity of detention is the logical starting point for the study of the system.The value system of the censorship of the necessity of detention is the foundation of the study of the system,and these values also dominate the overall trend of the system.The concept of human rights protection,the principle of presumption of innocence,the power balance principle and dynamic principle of litigation under the guidance of our country into the custody necessary examination system,it has also achieved on the realistic society,the maintenance of public order and national sovereignty has a certain degree of loss.Based on the analysis of all relevant values of the kernel,we can be divided into "maintenance of public rights and private rights maintenance" two kinds of value,on the basis of this analysis,conflict and fusion of two kinds of value,and to infer private value priority concept in the process of review the necessity of detention,in order to safeguard private value can be limited to the public value of the wreck,but the wreck here should be based on the normal operation of the public system and litigation order for the bottom line.The best choice to balance multiple values is to establish due process,to achieve the balance between public rights and private rights through the establishment of due process.Meanwhile,we should give due process to richer connotation.Finally,on the basis of combing the value system,we make an accurate positioning of the detention necessity review system,and position it as a procedural referee activity closely related to the arrest system.The construction of judicial control system needs to be carried out from multiple angles.From a static point of view,we need to systematically sort out the substantive contents involved in the necessity review of detention,under the guidance of dynamic litigation concept,take the "change" as the core review point.The entity of the detention necessity review involves complex,the law can not be completely covered,in order to overcome the lag of law,discretion we must set must comply with the review of the principles to limit the review subject,review the entity must conform to the objective,consistent with a causal relationship and in line with the principle of proportionality principle.On the basis of introducing the construction of non custodial cases of confession and punishment and criminal reconciliation cases,this paper puts forward the view of building a substantive review system for custody.Through the introduction of the substantive contents of detention in Japan and Germany,we can draw inspiration for China,so as to build an evaluation system based on classified assessment,step by step evaluation and quantitative evaluation.From the dynamic point of view,the procedure of the review of the necessity of custody is proceeding lawfully.Through the practice research,we find out the low rate of the system and the plight of the administrative examination mode in time.The specific content of the construction of litigation include:the establishment of accepting the trial two step start mode,in a neutral review subject under the auspices of the multi-party security fully participate in the establishment of the criminal suspects and defendants subject of litigation status,full protection of the litigation rights of the victim's face position,adhere to the review mode of direct speech.We should always adhere to the litigation concept centered on the trial and make the procedure truly activated through the construction of litigation.From the point of view of proof,we should perfect the judicial control system of the censorship system of detention necessity.We should prove that the object,the burden of proof,the standard of proof,the method of proof and the rule of admittance of evidence are the elements to establish the rules of proof for the necessity of detention.We will demonstrate the rationality of proof in the process of detention necessity review as the starting point of the research rule,and put forward the litigation value of the construction of the rule of proof.On the basis of this paper introduces the concrete contents of the various elements,review the necessity of detention that the object from the abstract point of view can be the necessity of detention for suspects and defendants is defined,from the specific point of view,the object of proof should be defined as an entity to change three parts,namely change facts and punishment requirements and the social elements of risk is a long time ago,which is the result of the dynamic action theory to prove regular.The establishment of burden of proof defines the burden of adverse consequences when facts are unclear,which is directly related to the final outcome of the review.The burden of proof should be borne by the defense party,and the transfer of burden of proof may occur in the process of examination.The proof standard of the system should be divided into two steps:the standard of "advantage evidence" is adopted in the investigation stage;the "clear and credible" standard is adopted at the stage of review,prosecution and trial.The system applies the proof of proof of freedom.A more perfect relief mechanism is set up for the detention necessity review system.The construction of judicial remedy mechanism is a necessary part of the litigation system of detention necessity examination system.It not only demonstrates the idea of protecting human rights,but also helps to achieve the complete right of action of detainees.The remedy object of judicial remedy mechanism includes the conclusion of acceptance,the conclusion of a case,and the final conclusion of the review.The final conclusion should be changed from the current recommendation right to the decision-making power,that is,the enforcement force of the conclusion of the review.If the detained person is not satisfied with the conclusions,he can appeal to the procuratorial organ at the next higher level,and provide relevant evidential materials.The written examination is the only way to make the appeal examination,the scope of the review is only limited to the doubtful part,or the next procuratorial organ should be reexamined.In order to give the detainees to protect their rights and provide more space,we should improve the application of non custodial coercive measures,bail should be advocated for review subject neutrality,set a reasonable guarantee system,at the same time,the residential surveillance is defined as the light on bail and compulsory measures in custody.The main innovations of this article are as follows:first,this paper puts forward the dynamic theory of litigation,and further demonstrates that the dynamic action theory for entities review of the content and object of proof plays an important role to,through the analysis of the dynamic action theory,we can review the necessity of detention is to "change" at the same time it is also the core premise,solid content and the object of proof.Second,put forward two step start mode,through the analysis of a large number of empirical data,we conclude that the filing rate is low,low startup rate is one of the important reasons for the necessity of detention review application rate is low,is empty,standardize the custody necessary examination system startup procedure is imperative,according to the current legal provisions the proposed two step acceptance,trial start mode,this mode can guarantee the obvious irregularities of the case as soon as possible in the screening,and the rational allocation of judicial resources,to review the necessity of detention to start standardized and scientific.Third,we should give due process to rich connotation,emphasizing that due process includes not only procedural content but also substantive content,and the construction of due process as a balance point to solve multiple value contradictions.Fourth,through the establishment of Chinese characteristics of the judicial review system to clear the subject of neutrality of the subject.I think we should learn from the essence of the judicial examination system,but not all,at this stage is not suitable for the detention review of the relevant rights by the court,only need to ensure that the review subject neutrality can be,for the introduction of the judicial examination system to carry out the "localization" of transplantation.