A Positive Study About The Operational Institution Of China's Criminal Detention

This article comprehensively, carefully and deeply studies the operational conditions of China's criminal detention by the way of positive research. The investigation place is a middle city in west China; the sample is the operation conditions of criminal detention of that city's district; the sampling ways include interview, questionnaire, material collecting and discussion meeting; the specific variable includes about ten aspects, following utilization rate of criminal detention, sources of criminal detention, purpose of criminal detention, standard of criminal detention, examination and approval of criminal detention, execution of criminal detention, time periods of criminal detention, protection of the detainee's rights, lawyer's intervening and direction of the detainee. According to the investigation and analyze by sociological ways, the author finds that there are many differences between the actual operational conditions and the system provided by law about criminal detention. These differences on " should " and " actual" reflect these aspect: Criminal detention should be a special power to use at urgent moment; however, the ration of criminal detention is very high in practice. The source of criminal detention should come from ''active criminal" and "major suspicion"; however, the source of criminal detention comes from the person whose freedom has been controlled through summon or forced appearance in practice, and most of the procedure of summon or forced appearance are illegal. The purpose of criminal detention should be collecting evidences, protecting escaping and committing again; however, thepurpose of criminal detention in practice is to get the suspect's statements then to collect criminal evidences to arrest the suspect. When judging the standard of criminal detention, the standard of major suspicion "is lack of actual operation, to get the suspect's statements is the necessary way of deciding to take criminal detention. The examination and approval of criminal detention in practice is completely decided by public security organ itself by four procedures; however, this procedure has already become formalization. On the time periods of criminal detention, the extended custody has already been basically disappeared, but most of the time periods of criminal detention are too long, and the public security organ usually misunderstand this article: "as to the arrest of a major suspect involved in crimes committed from one place to another, repeatedly, or in a gang, the time for submitting a request for examination and approval may be extended to 30 days" and often widely use this article. The extorting confession by torture has already been basically disappeared, but the detainees don't have substantial relieving rights, they are lack of the right to know what had happened, objection right and the right to get lawyer's help. During the criminal detention, lawyer's rights are limited; those rights that they should have can't be realized. The reasons of the operational condition of china' criminal detentions refer to many aspects. We should rationally realize china' criminal detention on the comparative of history and actuality, the actuality of social transform in present china and the world's need of human right's safeguard. Based on the need of procedural justice and the safeguard of human right, we should make adequate reforms on china' criminal detention, meanwhile we should pay attention to china's characteristic. These reform measures include perfecting the compulsory measures, making the standard of criminal detention much clearer, reforming the examination and approval procedure, strengthening the protection to the detainees' rights, carrying out and giving lawyers' right that they are already owned and should be owned, strengthening the controlling to the custody course after detention.