Study Of The Custody Substitution System

The custody substitution measures are the criminal prosecution measures that limit the partial rights or freedom of the criminal suspect or defendant, guaranteed that the criminal prosecution can be smoothly carried on under the condition of non-detention, namely a kind of certainly enforceable measures that can avoid the criminal suspect or defendant actually being put into the condition of detention, make the litigant's personal rights and freedom obtain the reasonable protection, also can effectively prevent him to escape, suicide, hinder evidence, preserve the criminal suspect or defendant as well as prevent to recommit a crime. The custody substitution system refers to the criminal prosecution system which is established according to the legal rules set up and applied based on this kind of measures.This article is divided into four chapters.The First Chapter has a comparatively comprehensive discussion to the concept, basic connotation, law idea foundation. The custody substitution system plays an important role in the criminal prosecution process, the ideas of which contains such as the limit of state power, the safeguard of freedom and the human rights play the huge guidance role to realize the procedure justice and the entity justice.The Second Chapter has a discussion to the value orientation of the custody substitution system from three different angles. The foundation of the legal idea of the custody substitution system is the human rights safeguard and the innocent estimation. Its value orientation is that provides the system threshold and cushion for detention, guarantees the realization of criminal prosecution function, simultaneously avoids the lawsuit infringing human rights, simultaneously also has the positive sense to enhance the lawsuit efficiency and save the judicial resources.The Third Chapter has a contrastive analysis to the substitution systems of the two big legal systems. The custody substitution system has been applied widely by the law advanced countries. Although in the different legal system and the criminal prosecution law of the different countries, it has the different manifestations, such as England "bail system", Germany "delay execution system of arrest order ", France "judicial control system" and so on, but regardless of the forms, these systems all are established, consummated and developed based on the ideas of criminal prosecution principle of "innocent estimate" and limitation of country rights, safeguard of freedom and the human rights. In these systems, England " bail system" is the most perfect, this kind of common law that origins from England, experienced the long historical development process, at last forms the custody substitution system, it not only has the profound influence to the common law countries, but also is accepted and approved widely by the civil law countries, and becomes the important object that some countries review and use for reference to reform their criminal prosecution system.The Forth Chapter has a discussion on how to utilize the law civilization achievement of the world and construct the custody substitution system of Chinese style based on the situation of our country, bring forward the suitable system design and the legislation suggestion against the insufficiencies which possibly appear to the system construction, view the prospect of the construction of the custody substitution system in China. The system in the mainland of our country such as guaranteed pending trial, residential surveillance, bail and so on is similar to the custody substitution system in the form, but has the fundamental difference from the custody substitution system in the legislation primary intention, its goal is not to protect to the freedom and human rights of the investigated person, but is to guarantee the judicial organ effectively exercise the criminal judicature power starting from "the right standard" , and the system congenitally lacks the aware consciousness to safeguard freedom and human rights. This kind of legislation starting point, is destined to cause that guaranteed pending trial cannot undertake the risk guard function which realize human rights safeguard and the legislator expect, also leads to the lack of the opinion to safeguard the rights of the criminal suspect or defendant when the judicial organ takes these measures, in the actual application, arises to the excessive period detention, current detention and judicial resource waste, breeds grounds for many complicated issues like judicial corruption and so on. It is worth using for reference and learning to our country which regards detention as a normal. Since the guaranteed pending trial system of our country in the value orientation and the system stipulation exists the defects departing from the advanced judicial ideas, also is unable to play the function replacing the custody substitution system in the criminal prosecution, it is necessary to construct the custody substitution system of our country based on our country characteristics and using for reference to the judicial civilization achievement of the world. Certainly, the substitution system also has the limitation, and some negative functions in some specific situations, regarding this, we should correctly treat, patch through a series of legislation amendments, enable it maximum limit to play the positive role.The acceptance of the custody substitution system by the judicial circles and people of our country needs a process, also will face many difficulties which the judicial inertias and the custom ideas produce, but considering the globalization advancement of criminal prosecution and the request that our country will construct the harmonious society, the establishment of the custody substitution system not only is feasible but also is necessary for the democracy and law development of China criminal prosecution. When constructing the custody substitution system, we must set down the detailed and explicit legislation stipulation of the custody substitution system such as the applicable scope, method, procedure, safeguard measure and so on.Many viewpoints in the article have the originality. Certainly, this article remains in the stage of frame and relatively fundamental description to the custody substitution system, needs further systematize and particularize through lucubrating and pondering so that strengthen the maneuverability of the system design, and make it play positive functions in the procedure of building and constructing harmonious judicature and society.