On The Control Of Pending Detention

In developed western countries with adequate legal system, the setting of the law of pretrialcustody not only has the function of safeguarding the litigation procedure, preventing crimes andpreventing social dangers, but also has the function of protecting the basic human rights ofdetainees. But the law of pretrial custody in our country pays more attention on the realization oflitigation function while ignores the protection of human rights, and the cost of criminalprosecution activities is also quite heavy. This paper is based on the practical issues existing in thepretrial custody, with the provisions of International Covenant of Civil and Political Rights thereofthe pretrial custody system’s minimum standard as a reference, considering the pretrial custodysystem in America, the analysis of the pretrial custody system in our country must be donetheoretically, legislatively,and judicial practically, for the purpose of providing ideas and methodsfor control of pretrial custody. The present paper consists of three parts.Part I, the problems existing in the pretrial custody in our country. In this part, through theinvestigation of the practical situation of the system of pretrial custody in our country, we find thatthe main problems are: the rate of custody remains high; the extended detention can not be banned;the personal safety accident happens frequently in the detention places; the power of compulsorymeasures of the police is too big.Part II, the causes of these problems. The author thinks that the reasons of the mentionedproblems may have three aspects.(1) In the theoretical understanding, the purpose of criminallitigation is mainly to combat crimes; the outcome of proceedings is in pursuit of the substantivejustice; presumption of guilt is always throughout the course of criminal proceedings.(2) Inlegislation, the legal provisions on the duration of detention is uncertain; the judicial reviewsystem for the pretrial custody is lacking, the law fails to distinguish the jurisdiction over thesubject under investigation or custody.(3) In the judicial practice, the judical staff lack the conceptof procedural government by law; the implement of alternative measures of custody gets harderunder the social background of the population movement accelerating; local Party committeesguide the judicial work improperly.Part III, control of pretrial custody. The author will explain it in the following three aspects.(1) In theoretical understanding, adhering to the goal of criminal litigation which takes theprotection of human rights as its core; In the course of the proceedings, taking the proceduraljustice as the guide; taking the presumption of innocence to guide litigation practice.(2) In legislation, making a clear legal limit on the duration of the compulsory measures; establishing asystem of judicial review of our country; separating the power of investigation and custody bylegislation.(3) In the judicial practice, the judicial staff shall establish the concept of proceduralrule of law; searching the ways that can extend the applicable scope of the alternative measures ofcustody; standardizing the guidance to the judicial work of local party committees.