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On The Necessity Of The Detention

Posted on:2011-10-28Degree:MasterType:Thesis
Country:ChinaCandidate:H H FanFull Text:PDF
GTID:2166360305981245Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Conditions as the conditions of the necessity to arrest the negative factor is the arrest of the heart of the system, clear the necessity of the arrest conditions are conducive to ensuring the smooth progress of the proceedings, but also conducive to the protection of criminal suspects and defendants legal rights. The modern state of law based on the presumption of innocence and the principle of proportionality is the necessity of the arrest were strictly limited, our legislation does not explicitly because of the need for the specific content of the arrest, leading to the judicial practice of "necessity" to determine the randomness, resulting in the many disadvantages, is not conducive to the maintenance of law and protection of personal freedom of citizens. This paper by the arrest of the need for legislation and judicial practice in the analysis of the issues that exist revealed the causes of the arrest of the need to reconstruct our country's conditions in order to reduce the application rate of China's arrest to protect the personal freedom of citizens.This total of more than 30000 words, in addition to the introduction and conclusion, the text is divided into four parts, and the main contents are as follows:This article discusses some of the major study of the introduction of China's arrest of the importance of the need for the conditions. With the arrest of different systems of Western countries, China's arrest of detention is an accompanying compulsory measures, which directly deprive citizens of their liberty, they must be strict legal control, the most important is the need to strictly limit the conditions of arrest. Present, however, the conditions of China's arrest of the need for serious legislative oversight, resulting in the judicial practice of science can not grasp the evaluation criteria applicable to arbitrary arrest and seriously. A clear need for the conditions of arrest to determine the meaning and standards of proof to establish an effective mechanism and review mechanism, that is the focus of this research.This paper studies the arrest of the first part of the general principles of necessity. Western rule of law through the enactment of legislation advanced comparative study made clear the need for meaning and criterion. Intervention in the constitutional rights of citizens arrest is mandatory measures, according to the presumption of innocence, a person without a court were presumed to be an effective pre-judgment legal innocence, not to be deprived of their liberty, therefore, the arrest in the application of measures, must be followed the principle of proportionality, critical review of the arrest is necessary, the only way to be in custody in violation of the legitimate rights of Freedmen minimum, to protect life, while the rights of freedom..This second part of the analysis of the status quo of China's arrest of the need for legislation and relevant judicial interpretations of the status quo, pointing out that the existing law does not define "arrest of necessity" that such legislation would lead to the judicial practice of omission there is no uniform application of standards for arrest, no arrest applicable rate is low, thus violating the legitimate rights of criminal suspects, the erosion of judicial authority and a huge waste of resources caused by the proceedings.This third part is the status quo of China's arrest of the reasons for the need for analysis. China's long-standing "assembly-line style" litigation structure, in practice the lack of effective alternatives to detention, lawyers can not play an effective role in the administration of judicial review and judicial relief is the nothingness of the institutional causes of action; the concept of presumption of guilt and led to "confessions-centrism", which is our long-standing legal concept; the detection pressure of the public security organs, digital assessment mechanisms and lack of risk assessment mechanism is the need to apply to the arrest to face the reality of the reasons for the status quo, three kinds of factors working together, leading to the arrest in China seriously the need to review the virtual set.This fourth part examines the need for China's arrest of the conditions of approaches, ideas from the legislative and judicial aspects of its reform. Legislation should clearly have the necessary means to arrest and thus refine the specific circumstances without an arrest necessary to establish the need to prove that the arrest mechanism and risk assessment mechanisms, the need for reform of the existing review mechanism for the arrest and listen to the views of criminal suspects and their counsel, the role played by lawyers, to bail reform measures to implement the less favorable economic phase of the criminal policy, stressing the need not to arrest without an arrest.
Keywords/Search Tags:Arrest of necessity, Social risk, Proof of mechanism, Risk assessment
PDF Full Text Request
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