Comparative Research On Criminal Enforcement

As one important part of Criminal Procedure system, criminal enforcement not only help to ensure criminal activities operating effectively and promptly investigate and punish criminals, but also directly related to civil liberty to the maintenance of criminal proceedings in the protection of human rights have significant impact. China's current criminal procedure code of criminal enforcement measures made many changes, but subject to criminal policy, and basic concepts, the legal structure, the Judicial Power Configuration, and other factors, criminal enforcement measures system on the basis of theory, system configuration, application, application procedures, supervise the relief, there are many shortcomings, unable to adapt to the rule of law and building a socialist harmonious society. Therefore, in order to bring criminal enforcement measures system truly ensure that criminal activities carried out smoothly, crime and the protection of human rights among the best balance the need for its depth reflection on the fundamental theoretical basis and clear system of the basic issues in connection with criminal changes, effective learning extraterritorial criminal enforcement measures the useful experience for further reform and perfect criminal enforcement measures system of specific recommendations for the benefit of our criminal enforcement measures system and the criminal procedure system. This article to adopt the criminal enforcement measures in the theoretical basis, the analysis, positioning, and the extraterritorial criminal enforcement measures the comparative study of the country's criminal enforcement measures to reform.This article has four parts:Part one talks about the basic theory, which is just a theoretical guidance to the criminal enforcement reform. The first is protection of human rights theory. Criminal enforcement measures in the protection of human rights, including the suspect and the accused and protecting the rights of all members of society (including the victim) the right to protection. Criminal enforcement measures redesign the system should be on the punishment of crime and protection of human rights on the basis of the organic unity, emphasizing the adequate protection of human rights, which is more practical significance in the present. The second is the presumption of innocence theory. Presumption of innocence has become a modern national criminal justice passage of the important principles of criminal suspects and accused persons to take coercive measures, Protection of Human Rights Foundation. Based on presumption of innocence theory, since any suspected criminal or subject to criminal charges, without judicial procedures confirmed the guilty before the law shall be presumed or presumed his innocence, it should enjoy the human rights, the law should be respected and protected. The criminal enforcement measures that might infringe upon the application suspects and accused the legitimate rights and interests of the coercive measures should be kept in custody of non-priority application enforcement measures to ensure that criminal suspects and accused by the court before court are not effective custody of normal state, and mandatory detention the exception of the application measures. The third is ratio theory. Proportion theory of the basic content embodied the principle of proportionality, principle of proportionality mainly include appropriate principles (referring to the State to exercise the means to achieve statutory purpose and principle of necessity (referring to the purposes and principles of the possible legal purpose of the several means that the choice of the parties or public interests damage the smallest), principle of proportionality (state run for civil damages to the protection of interests in contrast, proportional to the citizens of the damage was not clear more than the protection of the public interest). In the criminal enforcement measures to apply the theory and implementing ratio must be followed, means of legitimate purpose, the smallest need the right to proportionality, interests, and the timeliness of change. The fourth is the due process theory. Due process is just as a result of the basic protection. Criminal enforcement measures must be consistent with basic procedural justice, the setting up to the legitimacy of its values. In the criminal enforcement measures in the application process, should guarantee the party' s right to know, to a fair trial and appeals against, the right to seek compensation for the right, right of access and opportunity.Part two is a comparative research on the foreign criminal enforcement systems. Germany, France, Japan, the United States, Britain and other countries the system of criminal coercive measures were specific sort, analyze, and summed up the foreign criminal features of the system enforcement measures, including measures to Case of the arrest, detention measures of independence bail (bail) the principle of detention as a necessary exception to the broad application of undocumented arrests, coercive measures of judicial relief and so on, as the reform of our criminal enforcement measures provided to provide a reference.Part three is an analysis about the main problems of our criminal enforcement system. In this part, our system's main defects are concluded: defective enforcement system, which includes nondependent custody, lack of alternative measures of custody and effective convergence of statutory enforcement measures; Custody coercive measures unacceptably high rates of coercive measures applied, conditions are not clear, operational poor; the detention of coercive measures judicial review of the missing; coercive measures applicable "punishment" is a more prominent; detention period, the outstanding problems, including detention period is not reasonable, detain and handling time limit confused easily lead to detention measures abuse, the detention period is set to lead to detention period is too long and duration of emptiness, over the period of detention are serious and supervise the relief mechanism imbalance.Part four provides some countermeasures to perfect our criminal enforcement. The criminal enforcement measures system should be a long term goal and system gradual integration of the good ideas. At present, we should secure the criminal enforcement measures system process, and earnestly safeguard human rights, presumption of innocence, procedural justice principles, and gradually improve enforcement measures system and effective measures in the application procedures for enforcement measures power restrictions, appropriate application to safeguard citizens'legitimate rights. The system of criminal enforcement measures to build, in our country can consider to be called the arrest and called for the merger, remove Surveillance Residence, the call, arrest, the construction release on bail, pending the detention system mandatory measures, which is called to arrest by the measures, release on bail of alternative measures custody, detention pending trial of detention. The specific contents of the mandatory measures construction, protection of human rights, in implementing the presumption of innocence, procedural justice, the theoretical basis, from the application procedures, supervision, conditions, such as relief to the call, arrest, detention, release on bail pending trial of the system design of the concept of specific.