The Research Of Custody Substitution System

The Custody Substitution System refers to the alternative law system of detention, according to which, before the effective judgment was reached, the suspects, defendants, unnecessary to be detained, can be taken to Protect to Await Trial, or be bailed out. In the judicial practice of our country, the Pending Custody has various defects, such as extended custody, general custody and "hide and seek" incident during the country, which seriously harm the basic human right of the suspects and defendants.In view of this, it is magnificent to study the substitution of Pending Custody in criminal procedure, to insure the safety and freedom of the parties, and avoid the phenomenon of run away, suicide, and interfering the testify of the witness.In the tied of guaranteeing human rights, realizing substantive justice through procedural justice, this paper is focused on the Substitutive System of Pending Custody, to encourage more attention and deeper consideration. This paper is divided into five parts.Part one:The connotation of the Custody Substitution System. It begins with the sense and character of the Custody Substitution System and then, study the definition, compulsory of the substitution, and the characters of priority and the law.Part two:The Theoretical Basis of the Custody Substitution System. With free theory, the presumption of innocence idea, the balance of charge and defend theory and the suit economic theory, this paper reveals the foot of the existence of the Substitutive System of Pending Custody and study the value orientation it presents.Part three:The inspection and assessment of extraterritorial custody substitution system. This system is widely applied in countries with developed law systems.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, 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 human rights.Part four:The study on the current situation of the Custody Substitution System in China. This part starts from the problem that whether there is the substitution system in China, after affirmed, it firstly elaborates the differences attribute of our present custody substitution system and the outside territory's;Next it analyses the problems of our custody substitution system and the limitation of guaranteed pending trial system in our country. Finally it discussed the root of the problem from the aspects of belief and theory.Part five:The reform and improvement of the Custody Substitution System in China. Follows the advanced legal theories, under the guidance of the presumption of innocence idea, the proportion principle, and the judicial review principle, based on the characteristic of our country and using the reference of the achievement judicial civilized countries of the world, with the help of some coordinated measures,we would constructs our own custody substitution system. Based on these facts, it discusses the idea which uses "three steps" to establish the Chinese characteristic bail system.This paper just offers a tentative relatively superficial description of the Custody Substitution System, and tries to lead to further study and consideration, and to promote the design of the system for further study in future.