Study On The Countermeasure Of Restricting The Extended Custody

" Extended custody is a phenomena which can not be tolerated by lawful society"XiaoYang, the chief of the supreme court said. However, this has been in existence for many years in our life and has become a chronic and stubborn disease in judicial field of our country. In recent years, we have increased the strength to father and correct the phenomena of extended custody. But the effect is not so distinct as we expect. Some phenomenon such as straighten out and extended custody at the same time, correct afore but extended custody later, extended custody for a long time without disposal and so on often appear in some places and the public has strong dissatisfaction on these. In this dissertation, the writer is ready to analyze reasons of extended custody and put forward some countermeasures to restrict extended custody. This dissertation is composed by four main parts and mainly set forth the content below: The first part is the summary of the extended custody. In this part, the writer start with the compelling measures in the criminal procedure of our country, introduce and define the concept of extended custody. It means the illegal behavior of the public security and judicial department that detain the suspects or appellee over the legal period in the course of criminal procedure. And then the writer analyze the characteristics-illegal quality and tortuous quality of extended custody, at the same time, aiming at the condition that classifying of extended custody is disordered, the writer divides extended custody into conditional extended custody and unconditional extended custody, defines the content of extended custody and points out relative extended custody is the emphasis on protecting at present. At last, the writer introduces the harm of extended custody: infringing the legal rights of the people who are detained, tampering with the efficiency of litigation, injuring the authority of the law and encumbering the realization of judicature justness. The second part is the reason of extended custody. In this part, the writer analyzes the reason why extended custody comes into being from two main aspects: idealistic and institutional. On idea, the criminal procedure of our country is effected by the presumption of guiltiness heavily and the principle of the presumption of innocence has not been established yet; Secondly, the thought that regarding to the entity but ignoring the procedure affects the thought of law-officer; Thirdly, the value of the criminal procedure in our country lays particular stress on punishing crimes but ignoring protecting the human rights. On institution, the criminal procedure of our country is affected heavily on former Soviet Union, which has dense characteristic of planned economy. The absence of many institutions is the underlying reason that making extended custody coming into being. Firstly, the forcible measure of the criminal procedure is irrationality , substitute is few and can not work well. Secondly, the custody of our country lacks of supervision and censorship of custody does not refers to. Thirdly, Custody of China does not carry out the principle of proportion. The period of custody are always the same no matter whether the crime is heavy or light and that will make some cases hard to be handled. At last, the period of custody attaches itself to the period of procedure or the trial and the criminal procedure of our country does not separate them strictly. The third part is the ideaistic countermeasures of extended custody. In this part, the writer have analysed at first the necessity of changing the legal idea of criminal procedure law, then launched describing from three followingrespects: firstly, the presumption of innocence must be established and implement effectively. Any suspect or appellee is guiltless before the court adjudge him and he has the same rights as others. Secondly, the thought that regarding to the entity but ignoring the procedure should be discard and the relationship between the justice of procedure and the justice of entity should be handled correctly; Thirdly, the value of law should be changed and human rights should be attached importance to. Some balance should be found between punishment and human rights and we should not abandon one value to pursue another. The fourth part is the institutional countermeasures of extended custody. and this is the most important part of this paper. In this part, the writer have analysed at first the institutional predicament of restricting the extended custody, then maintain measures of other countries should be used to reform our criminal procedure: Firstly, we should reform the system of compelling measures, changing custody as "no warrant for arrest"and changing arrest as "warrant for arrest". At the same time, the condition and procedure of the arrest should be specified. The condition could be widened suitably and detention should be separated from arrest and custody. Secondly, judicial review that is adopted widely in the world should be constructed in criminal procedure. Court should be regarded as an adiaphorous third party who can use juridical rights exclusively and who has authority and impartiality of judgment. As the third party, court has the rights to censor and restrict the lawsuit of inquisitors which delegate the government. Without the permission of court, inquisitor cannot perform compelling measures to deprive the freedom of citizens. Thirdly, substitutable compelling measures for custody and bail should be added to carry out the system that bail asprimary and custody as secondary. Fourthly, proportion should be established in custody and the length of custody should be accommodate with the punishment. Fifthly, suspect or appellee should be given the rights to keep silence. It should be told that the appellees also have the rights to keep silence before the inquest of inquisitionist. At the same time, the principle of declare should be set up and the procedure that the inquisitionist apprize appellee his right to keep silence must be specified. The rights of silence must be put into effect. Sixthly, the principle of excluding illegal evidence must be really established and carried out. The verbal evidence obtained illegally must be excluded and the material evidence should be treated distinctively. Sixthly, the discrete system of detect and escort must be established and carried out and inquisition and custody should be separated. Before the formal custody, suspect or appellee could be detain in detention house temporarily. After the court has made the decision to carry out formal custody, suspect or appellee should be removed to the prison that is controlled by ministry of justice. In a word, to eradicate extended custody is not something can be achieved in one day and it need a long period. It needs much effort of the whole society and individuals in many different aspects.