Research On Judicial Control Of Pretrial Detention

Detention is a common personal coercive measure in criminal procedure. It reflects different natures and functions in different social forms, and has different significances in different stages of litigation. Modern detain institution is guided by the principle of penal rule under law and the principle of innocence construction. Under this institution, specialized organ detention criminal suspects and the accused in designated places and deprived their personal freedom according to the decisions of legal examining organs. The main purpose of detention is to prevent criminal suspects and the accused from fleeing, committing suicide, or disturbing evidences, so as to make sure that judicial activities could go on smoothly. The supplementary purpose is to prevent re-offence. Detention before trial should be exceptional, and generally alternative measures should be taken. The principle is treated as a comprehensive and stable or conduct which is the base or origin of rule. It's feature is that any definite and concrete fact or right and duty are not been made in advance, the legal consequence as well. The rule which could be regarded as principle is authoritative beginning origin from legal presumption. The pre-trial detention regime follows the general principle which guides and helps the regime concretely when the principle is set up. The principle is also the rule which is based on the modern legal idea. In a word, they are: legal procedure, necessity, exception, prohibition against excessiveness, judicial adjudication, remedy principles. In the process of establishing and applying detention institution, the principles of legality, proportionality, judicature, litigating rights, writ and preventing double risk should be implemented. The detention before trail has character of deprivation and exception for the right of citizen personal freedom. The justice censor in the detention before trial is necessary request for the principle of control power, procedure justness and innocence deduction. Its essential aims top rote every citizen's right of personal freedom avoided improper infringement. China built its own criminal judicial system according to the mould of former U.S.S.R. However, magnificent reform had been made on criminal judicial system in Russia in 1992 to build judicial inspection before judge. Thus criminal suspects and defendants gained the chance of'fight for right'. We have to think about the shortcomings of custodial investigation in China when comparing with the reform of criminal judicial system of Russia. Illegal and over- date custody are often practiced by tool or generalized way during custodial investigation due to many misunderstanding of custodial investigation. So it is necessary to think about the definition of custodial investigation and its due process, litigation theory, law principle of limited custodial investigation to build reasonable theoretical support of custodial investigation.Viewing from the power's natural and the principle of the country's development, we can see, the society's evolution calls for the power's division. Our country's development can't go beyond this rule. With regard to our pretrial detaining system, the related powers are very concentrated. In order to correct this drawbacks, and to dismiss its bad influences, some scholars provided some suggestions, such as judicial examining around the court, supervising under the prosecutor and dividing the detaining office from the public security administration. Its existence possesses both moral and legal basis for its justice. The operation of it will meet and follow the standard of justice (due process), and be inevitably affected by many factors. The existence of the custody system of China also has justice, but there are some shortcomings concerning justice in the aspect of norms. Some occurrences inconsistent with the society of legality took place in the process of the operation. Pretrial detention is a tumor of the criminal process in China. Today the criminal procedure has being ruled by law and modern. The aware of safeguard human rights is running high. So there is no room for pretrial detention. The essential reason of pretrial detention is that there is not a scientific and reasonable pretrial detention. Now in the used criminal procedure law some rules are not systematic, witch dose not help solve the problem. So we should set down perfect pretrial detention , which is the only way of solve. Because of the deficiency in structure of Chinese pretrial detaining system, many overtime detaining and using tortures to coerce a statement appeared in application. It is highly demanded to reform pretrial detaining system. As a kind of the most stringent compulsory measure, pretrial detention may be abused Without judicial control. The result must be that human rights are trampled on. Therefore, all the western countries have set up effective judicial review systems, which accord with the nature of powers and procedural justice. Comparing with the kind and connotation of detainment before criminal suit and assurance system of detainee's rights of main western countries ruled by law. To make use of some economic analyzing tools, we can find many basic rules in the pretrial detaining. Learning from their experience, this article gives an analysis of the present situation and the causes of pretrial detention in China. In some world-wide official documents, the human rights of the detainees in the pretrial detaining were expressed very distinctly, especially detailed in the procedure protection and the treatments. But in our country, from our on-the-spot investigation, we have found some critical problems, such as non-exceptional application, long-term detaining, non-humanistic treatments, difficult legal appealing, etc. As to these, we should establish a series of systems to correct them, such as, to make the operating process public, to expel the investigating officers possibilities of benefiting from detaining abuse, to strengthen detaining operating supervision, to lift the minimum treatments levels, etc.The paper shows opinions on the reform of detaining system before judging. It believes we can establish juridical control's system of pretrial detention and the rights of suspects and defendants can be safeguarded. It believes we should not only reform the proceedings but also the judicial system and improve official's competence in order to assure human rights and increase solving quality of criminal cases. On Chinese current pre-trial detainment system reform, scholars have raised several schemes such as Judicial Review, Procurator Monitoring and Independent etc. For the third scheme, Independents chime, further design is necessary on its implementation. For instance, the current detainment house should gradually be turned over to the justice sector. Such a reform abiding by the developing rules of detainment system, of judicial and administrative proper, and with the considerations of Chinese current judicial environment, is feasible. The reform may further promote the reasonable and specialization of detainment activities. It will also optimize the deployment of state power, raise the efficiency of criminal lawsuit, and will surely protect the human right of the detainee to a greater extent.