On The Principle Of Proportionality Under Criminal Detention

The criminal detention is not strict, the detention period is long , the reasonable rights of the suspects are not enough and the safeguards of the legal rights are weak.All these influence the effects which the criminal proceedings have on the safeguards of human rights in our country. This situation is caused by the factors of legislation techniques and the factors of the judictory enviroment.What's more the most important factor is that we lack a principle which can influence the ideas of the legislators and judges.The proportion principle which appeared in the police law of Germany meets this request.The proprotion principle include three doctines.Firstly it includes the appropriate principle that means should meet the aims. Secondly in includes the necessary principle that the damages that the means cause should be minimum.Thirdly it includes the principle that the damages that the means cause should be appropiate to the benefits which they cause.The foundations of the proportion principle are essentially rule by law theory and the pinciple of the operation of power theory.The core of the proportion principle is to safeguard the human rights to the largest extent in the course of balancing the country's power and the citizen's rights.Since the proportion principle was created it has been adopted widely in important areas of public law.This principle can be widely adopted in some areas of criminal proceedings especially in the areas of the criminal detention.In the western world the essential of the proportion principle is reflected by the system of ciriminal detentions.lt is reflected by the separation of the execution and authorization of criminal detention. And it is also reflected by the suitability of the conditions of the criminal detention and the pinciple of writ.Finally it is reflected by the duration of the criminal detention and the standard of proof of the detention and the rights of the detainees are apporpiate.The proportion principle is adopted in the whole process of the legislation and adjudication of the criminal detention.This article analyzes the necessity and feasibility of the creation of the proportion principle in our system of criminal detention.Then this article designs the means of the criminal detention according to the proprotion principle.Finally this article points out that the most important effect of this principle is to encourage the conception renovation and notion review of the criminal legislation and adjudication.If we have no renovation in the ideas we will never reach the original aim of this principle even if we had the best design.