| As a kind of the most stringent compulsory measure, pre-detention may seriously invade personal freedom of suspects and defendants. In law, custody and arrest have been strictly separated in the western countries to impose a tight legal control after pretrial custody. Through substantive constitutive requirements, the legal basis applied to custody has been restricted, the time limits for custody and its extension have been expressly stipulated, place of pre-detention and place of imprisonment after arrest have been separated, and in procedure various judicial relief methods have been prescribed for those being held in custody. The laws in the western countries have established some fundamental principles and theoretical frames concerning these issues.Part one explains the content of pre-detention, which contains its legal nature and function. The article analyses different concepts about pre-detention in different country, which reflects its independent status. This system is different from arrest and custody in China, which can be followed with a long-time detention. Secondly, it suggests that pre-detention should be an exception and defending measure, but not the tool to carry out anticipating penalty. The aim of pre-detention system is different between Anglo-American law and Continent law.Part two centralizes the theoretical legal base of legitimacy of pre-detention. It begins with the relationship of human rights and government power, which implicates balancing the rights and power is the intension of the system. The development of criminal compulsory measure in China also embodies the balanced relationship. Next, the paper expatiates the modes to restrict the power in the sight of the rule character. The mode of restraining power by rule decides the concrete double-way: the one is the power-restrained mode which contained topic of power, such as the object, the term and place; the other asks for endowing procedural rights to the accused.It expatiates the inner relationship between the pre-detention systemand legitimacy of the criminal procedure, and suggests to carry out the function of restraining the power by law, that is to practice legitimacy of the system by pre-trial procedure. Then it abstracts that criminal procedure should protect the human rights through the optimistic and pessimistic modes, the concrete technical mechanism includes: domination of government power, division power, criminal procedure legalism.It discusses the problem how to choose the conflicting values in pre-detention system. In our country, it's seriously out of balance in purchasing the values between safety and freedom, and how to resolve the problem must be suit for the civilization of society, serving for legitimacy of law.The third part analyses the pre-detention system in many countries by comparism. It discusses the substantial condition of the pre-detention, and suggests that detention should be alienated from the arrest system in order to control judicial power. It also analyses the differences between the concrete technical mechanism of the pre-detention and arrest system.In part four, it introduces the tenet of the international human convention and how to re-constructing the principle of the pre-detention system in our country.In part five, it analyses the defects in detention system in our country, such as, beyond period of detention, the syncretism of detention and arrest, the substance is the system of detection being the pure tool of controlling the crime.In part six, the author suggests the core of the innovation is the alienation between pre-detention and arrest, setting up judicial examination mechanism, which can get rid off the control of police and the prosecutor.In part seven, the author provides the suggestion on how to build up the whole legal control of pre-detention system, which contains opening the power and the regression of procedural rights, through the two system, to practice the innovation of the criminal procedure. |
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