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On The Issues Related To The Proof Of Detention

Posted on:2011-03-29Degree:MasterType:Thesis
Country:ChinaCandidate:X D LiFull Text:PDF
GTID:2166360305481341Subject:Litigation
Abstract/Summary:PDF Full Text Request
The thesis about proof of detention is a one-sided understanding in practice and has to be study further in theoretical research. Studies on proof object and responsibility, proof burden, proof standard of detention, has substantially realistic significances in implementation of the statutory detention conditions, reduction wrong and improper detention and protection of the criminal suspects'legitimate rights and interests through ensure the quality of cases.In addition to this introduction, the text is divided into three large parts. There are about 30000 characters.Part one mainly discusses the proof object and proof burden of detention. The statutory proof object of detention should include whether it is of criminal facts, whether it has the possibility of being sentenced penalty above imprisonment and whether it has detention necessity. However, in judicial practice, when submit for approval of detention, investigation agencies generally prove criminal facts only, but don't provide comprehensive evidences and fully argue to proof whether the criminal suspects could be sentenced penalty above imprisonment, and must be detained. So to speak, the investigation agencies'implementation of proof responsibility is defective. Therefore, it should be emphasized that approval of detention authorities judge conducts of investigation agencies strictly in accordance with the legal proof standard ,and conscientiously enforce"deficient proof result in risk of losing"if it is not fully proved by means of rejecting the lawsuit request for approval of detention, so as to strengthen the proof burden of investigative agencies.The second part focuses on the standard proof of detention. Theoretical understanding on statutory proof standard of detention in force is a hundred schools of thought contended situation; in judicial practice three problems exposed, which is including the relevant provisions are not definite and comprehensive, proof standard is vague, detention conditions are irrational. The proof standard of detention in practice is detached from the statutory standard, because not only inappropriate assessment system in investigative agencies and procuratorial authorities and inappropriate provisions about indemnity of wrong detention affect investigators in just disposal of cases, but also the investigators have subjectively irrational understanding on proof standard of detention and wrong understandings on purpose of criminal suit and function of detention confronting tremendous pressure to punish crimes. Taking into account the investigators'knowledge of the criminal facts is quality progression before arrest and quantity progression after arrest; the detention is of severe means and its main function should be procedural safeguards; the value-seeking of reform of China's investigative procedures is in favor of protection of human rights moderately; and the measures of detention have a high usage rate, a long period of custody, being alienation as the main investigation means and derived to functions of punishment crime, deterrence crime, advance penalty; investigative agencies will not conduct any substantive investigation after detention or do their best in investigating cases returned for supplementary investigations in the stage of review and prosecution; and the procuratorial authorities confront scores of obstacles in investigation of their own, hence, the current conditions of arrest should be strictly complied with, and proof standard of detention should be close to the conviction standard.The third part of the proof procedure is discoursed upon judicialization reform of examination and approval detention procedure. Examination and approval detention procedure in China coincides with elements of judicial procedure in the opposite parties, a neutral judge, the relevant information and evidence and certain judgment, but has deficiency in exchange of opposite views equally. Consequently, it can be characterized quasi-judicial procedure. In view of being entitled to procedural jurisdiction, obligated objective and impartial obligation and the characteristic relationship of mutual independence with investigative agencies, procuratorial authorities become a judge in the procedure of detention proof. In improvement of procedure of detention proof, it should ensure criminal suspects and their advocates for the right to equitable participation through improving relevant legislation and system; it should structure reverse proof mechanism of detention by means of authorities of change and repealing detention being entitled to previous examination and approval detention authorities; and structure dynamic and sustained proof mechanism by legislation about proof standard and procedure to extension period of detention and establishing review detention system in examination and approval detention authorities.
Keywords/Search Tags:Detention, Object of Proof, Burden of Proof, Standard of Proof, Examination and Approval of detention
PDF Full Text Request
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