A Discussion On The Reconstruction For Domestic Judicial Review System Of Pending Custody

Pending custody means depriving criminal suspects or defendants of personal liberty before courts have made legally effective judgements, aiming at preventing their escape, suicide, destruction of evidences and retaliating against the witnesses, and ensuring the success of criminal activities.Pending custody in China is not a legal enforcement measure,but the state of continued deprivation criminal suspects or defendants of personal liberty,which is the result of the two enforcement measures-----detention or arrest. Modern countries under the rule of law have set up strict examination procedure for pending custody, which aims to limit the public power and safeguard citizens' basic rights.In our criminal juridical practice,there are many problems such as extort confessions by torture,extended custody, which seriously violate the legal rights of criminal suspects or defendants.The chief cause of these problems is lack of effective judicial review mechanism in our country. Lacking of pleas in judicial review procedure of pending custody leads to serious judicial injustice.Hence, this paper starts at the modern criminal concept of protecting human rights, the checks and balances, and enhancing the pleas, to reconstruct our judicial review system of pending custody.This paper includes the following four sections:The first section mainly discusses the basic theories relevant to judicial review system of pending custody. This section firstly offers the concept of pending custody and summarizes the characteristics of it.Secondly,this section offers the concept of judicial review of pending custody and summarizes the characteristics of it.Finally,this section elaborates on value concepts of judicial review system of pending custody including concept of human rights, checks and balances and due process of law.The second section observes and studies foreign countries' judicial review system of pending custody,and sums up their common poits:courts make decision of custody or releasing without delay; courts make the decision neutrally;both sides have full opportunities for debating in judicial review proceedings of pending custody.The third section firstly summarizes the present situation of our judicial review system of pending custody, and then analyses its imperfections.The most outstanding problem of our present system is lack of pleas. Basing on the imperfections of our present system, and starting at enhancing pleas,the fourth section comes up with some proposals of reconstructing our judicial review system of pending custody.