Exploring The Mistake And Resolving The Cause Of Formation Of Our Country's Compulsive Measure

Modern criminal procedure has diplex aims of beating crime and protecting human rights, and these aims are parallel. Our country's Criminal Procedure Law which prescribes to applying the principle of no compulsive measure embodies the aim of safeguarding human rights. But some things disaccord with the purpose of the lawmaker. The applying ratio of arresting and detaining is very high that there is much higher ratio of applying detention, including un-necessary detention and illegitimate term of detention, consequently leading to exceed of detention. The applying ratio to obtain a guarantor pending trial which is very slow doesn't operate. Residential surveillance either becomes in-significant detains measure or don't protectively operate. These problems disobey the procedure justice, even endangers essential justice. Domestic scholars and overseas scholars are attention to the problems. Our country's scholars, for example Chen Guangzhong, Chen Weidong, research these problems in-depth. They especially pay attention to comparison study and emphasize on bail and detention by way of organizing the China-German, China-Great Britain'academia communication. These activities operate to convert the concept. On the based of these, the author analyzes the cause of the mistaken of compulsive measure. The author thinks that the defect of Criminal Procedure Law is the direct and important cause. In the form of the item of the law is coarse and prescribe briefly. In the content, to obtain a guarantor pending trial should have been a sort right of suspicion and defendant. Lack of relieving compulsive measure behind detention which leads to unlawful detention can't be rectified. Detention is separated from arresting and keeping. Residential surveillance is divorced from practice. It is lack of the experience of lawmaking. The content of the law is very simple, and is probable of leading to abuse power when the police department applies compulsive measure. Ought to point, a good man would become an evil man if the system has disfigurement because the disfigurement will make people utilize it to attain unfair benefit, and wholesome system doesn't leave the chance to the evil people. Comparing with China, western countries have hundreds of traditional history of rule of law which have formed the mature idea and design of system, including carry out the idea of human right during compulsive measure system. The way to confine the system of detention is detention must come through nonaligned judicial review and heard the idea of the detainee. The detainee has the right of judicial rescuing and attained the help of lawyer.The court has the right of callback, and so on. On the base of the brief compare, the article tried to bring forward reforming to be bailed out and await trial and re-construct the system of compulsive measure.