Extended Detention Analysis And Countermeasures

Illegally prolonged custody is a difficult problem which has always perplexed our criminal judicature over a long period of time. As the most stringent compulsory measures to deprive the personal freedom, custody is strictly controlled by judicial review in the Anglo-American system country and civil law country. However, in our country, pre-trial procedure lacks a litigious structure and custody is not separated from arrest which is usually decided by prosecutor. So in the judicial practice, custody is abused for the methods of investigation and the collection evidence. Illegally prolonged custody has been a widespread phenomenon in Chinese criminal action. With the protection of human rights in the whole world, illegally prolonged custody becomes the focus of society concern and attack. In the circumstances, our supreme judiciary has taken action to clear and rectify the problem several times, but produce very little effect. So somebody says: " It's a mythology to end prolonged custody." Yet, author try to make a systematic research on the subject of illegally prolonged custody in our country, revealing the defects in the judicial and constitutional system, hoping to find a way to thoroughly eliminate illegally prolonged custody.This thesis, roughly 40,000 words, besides an introduction, is divided into four parts. Each of the concrete contents is as follows:In the fist, author explains the concept of custody in the different country, then analyze the function of custody, pointing it's a defending measure in the criminal process but not the anticipating penalty. Many countries strictly control the application of custody by expressly stipulating the requirements, the procedure, the time limits and judicial relief of custody. On the contrary, our custody is not special prescribed as a separated compulsory measure, and the term of custody isambiguous and indefinite, which is the direct reason of illegally prolonged custody. Furthermore, author differentiate the expressing prolonged custody and the implicit prolonged custody, the technical prolonged custody and substantial prolonged custody.Then author analyze the status quo of custody and illegally prolonged custody in the judicial practice in our country, and argue the high custody rate suggesting the alienation of custody function. This results in widespread illegally prolonged custody and tremendous harms to the person, the country and the society.Author explore the contributing factors of illegally prolonged custody from the phenomenon to essence in the third part. It exposes the defects in the judicial practice, legislation, idea of value and constitutional system. These factors comprehensively contribute to illegally prolonged custody continuous existing in our country.Last but not the least, author provide the tentative idea on how to end illegally prolonged custody. Firstly, we should perfect our criminal procedure step by step, by which to promote the innovation of judicial and constitutional system. Then, the reconstruction of detention system must embody the restrict mechanism of power of custody, the guarantee mechanism of protection of civil right and the self-restrain of judiciary, thus, build up a strict control system on custody and realize the myth to terminate the illegally prolonged custody.