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A Discussion On The Improvement And Development For Domestic System Of Pretrial Detaining

Posted on:2008-10-22Degree:MasterType:Thesis
Country:ChinaCandidate:S Z XueFull Text:PDF
GTID:2166360242959970Subject:Law
Abstract/Summary:PDF Full Text Request
Protection of criminal's human rights is the basic requirement for modern law and the significant criteria for judging the level of protection of human rights. Chinese pretrial detaining emphasizes the purpose of fighting against criminal and ensuring the normal operation of criminal prosecution from both two aspects of idea and system and neglect the protection of criminal's human rights; moreover, pretrial detaining is totally controlled by policeman and inquisitor. The pretrial detaining system is foreign to the requirement for modern law since it has many shortages including that it doesn't form independent judicial control system, which arouses the author's reflection.Firstly, starting with the elementary theory of pretrial detaining, it is investigated the signification and purpose of pretrial detaining and he believes that pretrial detaining refers to the coercive measure taken by the state to deprive the freedom of the person of suspects and defendants before the judgment of the court takes effect. Generally speaking, in the countries belonging to continental law system and Anglo-American law system, the purposes of pretrial detaining are both to ensure the smooth progress of criminal prosecution; however there are some tiny differences between them since the countries belonging to continental law system emphasize the positive role of detaining in guaranteeing the detection and finding out the fact. Basing on the need of finding out the fact, the purposes of detaining of continental law system are not only to save suspects from damage to prevent them from escaping and hiding, and more importantly to save evidence from damage and prevent them from destroying or hiding evidence, bringing improper influences on other testifiers and ones who have special knowledge and acting in collusion to make each other's confessions identical. However, in the countries belonging to Anglo-American law system, the purpose of continuing detaining after arrest is only to ensure the appearance during the trial, which because that the structure of litigation of parties in these countries makes the prosecution and defense both have positively prepared before trial and have collected evidence; moreover, suspects have the right to keep silence and investigative organs are not permitted to detain suspects for getting the predominance of collecting evidence by using the state's enforcement and detaining isn't permitted to use as the means for getting confession. The theory of Chinese criminal law believes that the coercive measure including arrest and custody can prevent suspects from escaping being investigated prosecuted and judged and prevent them from making troubles for litigation, for instance, running away, suicide, acting in collusion to make each other's confessions identical, destroying evidence, forging evidence and transferring proceeds of crime, etc.Secondly, in the thesis, it is compared the essential condition for the application of pretrial detaining, judicial control of pretrial detaining, judicial relief of pretrial detaining, the location for detaining of pretrial detaining, the protection of detainee's right of both Chinese and foreign in a comprehensive way. In western countries, the essential significant conditions of pretrial detaining should include the following three ones at the same time, namely, great suspicion of criminal, the legal reasons for detaining and necessity of detaining. The judicial control of pretrial detaining is realized by the order, namely, suspects are detained after inquisition by preliminary examination judge. In the countries belonging to Anglo-American law system, detainee seek for judicial relief by applying the Writ of Habeas Corpus; judicial review pretrial detaining; the countries belonging to continental law system adopt the manner of judicial review for judicial relief. As for the location of pretrial detaining, the system of separating arrest and detaining is adopted. According to the Article 9 of International Convenient on Civil and Political Rights, the detainees have the rights of refusing detaining, knowing the reason of detaining and accusing, the right of disputing detaining and the rights of enjoying the humane and dignity. Contrasting with western countries, Chinese conditions of arrest and detention are dark and are detective in maneuverability; since there is no judicial control towards pretrial detaining, the examination supervision turn out to be a mere formality; the judicial relief of pretrial detaining possesses the characteristic of administration, which doesn't play its roles of correcting illegal detaining, improper detaining and overdue detaining; as for the location of pretrial detaining, the location of arresting don't separate from the location of detaining; the protection of detainee's rights isn't enough since many right aren't emphasized and realized even are limited strictly.Thirdly, it is pointed out that the defects of legislation concerning Chinese pretrial detaining include the following ones: arrest is the same as detaining; the criminal detention is determined and carried out without any supervision and restrictions; as for the arrest, the procuratorial examination but not the judicial examination is applied and prosecuting organs have the right to deprive the freedom of citizens; investigative organs don't separate from the institution of detaining; extension of the period of investigating and detaining suspects isn't restricted effectively.Fourthly, the author discusses on the general principles which the system of pretrial detaining should follow. The principles of procedure and law includes two meanings, and one of them is the requirements of legislation, namely, the regulations of criminal prosecution proceeding including the regulations of the essential elements of detaining and the regulations of the essential elements of the procedure of detaining should be set by law ahead, that is to say that the legal reason of detaining and detaining must go through the procedure concerning laws and should be determined by qualified or delegated officials. The second principle is the requirements of judicature, namely, criminal prosecution should be carried out according to the criminal proceeding regulated by Chinese laws; the principle of necessity requires the reservation and avoidance of applying pretrial detaining and requires the absolute necessity of pretrial detaining; the principle of exception emphasizes that the low frequency but not high frequency of applying detaining, and depriving the personal freedom of persons charge with a crime is a kind of exception; the principle of judicial justice focuses on the control of pretrial detaining by law, namely, the order of detaining should be issued in written form by judge and investigative organs don't have the right to deprive or limit the freedom of citizens; the principle of legal relief requires the most effective protection of the rights and interests of parties; the principle of proportion requires that the pretrial detaining suspects or defendants should assort with the degree of their criminal. Fifthly, the author puts forwards his ideas of reforming and perfecting Chinese system of pretrial detaining and this part can be divided into two parts. In the first part, beginning with the elements should be considered for perfecting the system of pretrial detaining, the author believes that it is necessary to establish new concept of human rights: i, intensifying the publicity of the law principle concerning presumption of innocence and consideration of suspicion as innocence for helping detectives to establish correct concepts of detaining; ii, intensifying the implementation of the regulation of criminal procedure law concerning that sentence only basing on confession isn't permitted in order to help the procedure of investigation to break away from the unilateral behavior of collecting confession of suspects and help detectives to change their old concepts of taking confession as most important one, adoring confession and taking confession as most important evidence. Another necessary transformation concerns the concepts of the application of the alternative measurements of detaining. In order to make the system of pretrial detaining more accord with the spirit of law, the real judicial review system should be introduced and the rights of policemen and procuratorial power should be designed again for enlarging the judicial jurisdiction from the scope of reality to the validity of detaining, which are all large reforms concerning judicial system. In the second part, the author puts forwards concrete proposals on legislation for perfecting the system of coercive measures and increasing the alternative measurements of detaining, i.e. further detailing the conditions of application of pretrial detaining, separating arrest and detaining and detaining controlled by justice as independent coercive measure; establishing judicial review system taking order as core; establishing the system of applying re-check and carrying out re-check by the court according to their authority after detaining; reforming the system of await trial after being bailed out by using the system of bail as reference; establishing the system of procedural judgment and procedural justification of detaining; perfecting the regulated term and location of detaining; perfecting the system of coercive measure and increasing the alternative measurement of detaining.
Keywords/Search Tags:Improvement
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