China Pending Custody Reconstruction Of The System

Detention is a kind of ancient law system which, in essence, deprives a suspect or a defendant of personal freedom by taking him or her into custody in a special place in a certain term in order to guarantee the compulsory measures enforced in a certain legal order. Pretrial Detention refers to the state of being detained in which suspects or defendants aren't divested of personal liberty until they are adjudicated and their court decisions go into effect. And it denotes "arrest and custody" in our country, China. China's present pretrial custody system exposes a large number of malpractices in operation, which has become one of the social hot-spot issues followed with interest by all walks of life.the Term of detention depends on the litigation term, many problems, such as the punishment function of detention, the transgression of proportionate principles, the non-judicialization of the application of custody, nihilism in detention remedy, are still an outstanding manifestation in China's current pretrial custody system abuses .Aimed at the abovementioned abuses,our government has ever launched main means of the sport managing for three times with raising judicial personnels responsibility and tightening punishment of those who violates the rules and the disciplines,but it is ineffective.Reconstructing the system of pretrial detention is the only way to solve the abovementioned abuses thoroughly.The author, on the basis of comparing and reflecting the pretrial custody systems at home and abroad, puts forward: We should establish and improve the precautionary measures prior to detention, the supervision control in detention, and the litigation behavior invalid system and the mechanism for the illegal custody investigation, introduce the judicial review system and practise the legal doctrine of arrest writs or warrants stipulate the longest detention term, In the provinces, autonomous regions and municipalities (directly under the Central Government), two-level public-security law courts shall be established to review the whole process of the pretrial custody for suspects and defendants; the places of detention wheresuspects and defendants are detained after being arrested shall be transferred to be under the management of the detached administrative departments of justice; and procuratorial organs shall be endowed with the right of suggestion on detention, to perfect compulsory measures of nondetention and improve the system of advocacy in the investigative phases. The accountable mechanism shall be constructed to carry out the principles of compensating for the illegal custody cases in an all-round way, and according to law, to investigate the personnel in charge and other persons responsible who committed the crimes of false imprisonment, prosecuting them for their criminal responsibilities, prevent and decrease this kind of illegal detention cases from happening, and hereby safeguard the legal rights of suspects and defendants in real earnest.AChapterl relates the perspective the perspective of the current situation of the pretrial custody system in our country, China.The author believes that China' s pretrial custody system is a success in prosecution institutions' successfully carrying ? out criminal prosecutions, but the measures of guaranteeing human rights is badly imperfect In China, pretrial detention places are mostly set up in the lockups or houses of detention under the control of public-security departments so as to make investigative organs and investigators obtain the confessions of suspects and defendants and collect their evidence of guilt;The detention has no reasonable reasons ,and the term of detention is extended along with the extension of handling the case and these cause the indetermination of detention term.The measure of detention adopts the administration examination and approval procedure,and it lacks the judicial organ isreviewing of the neuter gender.The objections to the measure of detention advanced by those who were detained have no efficient ways to thansmit and relieve,and the way of legal relieve is jammed and it may cause the development of the private relieves such as "application to the higher authorities for help" , " application " or footing cases and favor cases etc.we lacks the virile measures to ascertain where the responsibilities lies to those who have taken the illegal measure of detention.And the reasons of the abovementioned abuses due to the accumulation of the traditional culture of recognizing ofpower and looking down on right and on theother hand,it is because of the system of the criminal prosecution of that investigation is the center of everthing.Mostly,the reason caused the abovementioned abuse is the pursuing punishment of the crimes and ignoring the guarantee of human rightsChapter 2 states the research on the pretrial custody systems in foreign countries. The author thinks that, through the research on the pretrial custody systems in the main western countries governed by law, such as the U.K., the U.S.A, Germany, France, Italy, Japan, the pretrial custody systems show the following features in the above-mentioned nations: the dualism of the purpose of detention, i.e. the adopting of the compulsory measures of pretrial detaining conceives the duality of the procedural purpose of criminal litigation and the realistic purpose of social security. the independence of detaining measures, i.e. the relatively long period of detention before a verdict goes into effect is regarded as a compulsory legal measure beyond the criminal custody and arrestment, accordingly it is applied in procedure and in entity, to set the more strict demands than detention and arrestment, the relatively short period of personal imprisonment; The judicial review of the applied procedure of custody, i.e. for the applicability of detention measures, the judicial reviews are performed by the neutral judges. Insomuch as detaining and arresting is relatively short for the duration of detention for suspects and defendants, the above-mentioned nations stipulate that police, investigators and even citizens have the right to decide or carry out the duration of detention and treat it as a universal principle. However, for detention, this compulsory measure, those nations, without exception, prescribe that custody doesn't have validity and properness unless it is censored or authorized by the judges who execute their national judicial jurisdiction; the proportionality of the application of detention, i.e. the proportionate principles of the custody measures are established and the coerciveness of the detention measures should conform to its objectiveness and necessity; the neutrality of custody places, i.e. the detainees or persons under arrest should be taken into custody in the detention homes appointed by the judges and not by the investigative organs and investigators to make them get rid of the control of the investigative and procuratorial organs and effectively prevent them from abusing their powers of detaining; as for the reality of detention remedy,all of the western nations passed law, stipulating that detainees have the chance to state their views or plead for themselves (or through their counsels or close relatives) and that law courts as neutral judicial institutions of arbitration hold hearings of witnesses to make judgments upon whether the cause of detaining holds water and whether the detaining continues and set detainees free as soon as possible under the conditions that the detaining is outside the law or unnecessary.Chapter 3 relates the establishment of the preliminary controlling mechanism of China's pretrial custody. The author holds that China' s system of arrest should be reconstructed to endow the neutral law courts with the power to decide on detention and build the mechanism of the separation of custody from arrestment.cancel the litigation to handle a case in the restriction of the term for period,and establish the longest term of detention, the places of pretrial detention should be transferred to be under the management of the detached administrative departments of justice and let suspects and defendants break away from the personal control of the police and procuratorial organs; For-as-much-as the status and function of China' s common. law courts in the proceedings of criminal prosecutions, two levels of public-order law courts should be established in the provinces, autonomous regions and municipalities(directly under the leadership of the central government), separating from the common law courts, directly under the jurisdiction and supervision of the Supreme People' s Court, the judges of the public-order law courts are selected on the basis of their qualification from those who have done well in the common law courts and their main tasks are to examine the applications of arrest from the police and procuratorial institutions, sign writs or warrants of arrest for some of which satisfy the requirements of arrestment, and otherwise, overrule or reject the applications of arrest lodged by the police and procuratorial institutions. Meanwhile, the public-order law courts must have a judicial review of the applications of custody for suspects and defendants or according to their authority, have them under detention subject to periodic re-examinations; Since China' s institutionalization of nomocracy is very low, and the comprehensive qualities of the criminal investigators are not high and their consciousness of human rights is faint , the doctrine of arrestwrits or warrants should be practiced as a principle and since our society are in changing times, the situation of social order is grim. As a result of this, the arrestment without writ should be permitted in extraordinary emergencies in order to effectively restrain criminals from committing crimes. For the detention after arrestment, the procedure of traditional administrative examining and approving should be transformed into that of the judicial reviews under the open hearings of witnesses.Chapter 4 expounds the constructing of the supervision mechanism in custody. The author considers that the law courts of public order should have suspects or defendants under detention subject to periodic re-examinations. In the meantime, they should have a review of the applications of changing detention from suspects and defendants or counsels and close relatives, and if the suspects or the accused refuse to accept their sentences or verdicts, they can appeal to the higher law courts.at the same time,weshould further perfect the compulsory measures of nondetention of recognizance and supervision of residence andlet the detention before trial become an exceptive measure of waiting for trial. In China, the people' s procuratorates are the state organs responsible for legal supervision, and also procuratorial institutions in the proceedings of criminal prosecutions. They can table a proposal on behalf of the procuratorial organs at the time when the public-order law courts make a decision to detain suspects and defendants, endowing them with the right of suggestion on the decision of custody and the duration of custody. It goes without saying that this right of suggestion on detaining doesn' t have the ultimate binding force. The public-order law courts should follow the proportionate principles in the continuous examinations of detention To those who shouldnot betaken into custody continuously,we should cancel orchang the measures according to the job power actively.Chapter 5 contract the system that the judicial act is invalid and ascertain where the legal responsibilitieslies.The author deems thatescorts to theoccurrence in the illegal detention of the litigation stage,the most valid processing method is to announce thatlitigation behavior invalid and suggest to announce the proof obtained by term exceeding detention is invalid or cancel the measures of pretrial detention,for those that have already in prosecution,we may justify toterminate litigation,that theprinciple should be followed—there should be remedy if there is any infringementand there should be compensation if there is any damage. And the state shall compensate for the illegal custody in an all-round way. with regard to the unlawful detaining, whether the detainees are pronounced guilt or not, they have the right to obtain the governmental compensation. In addition, as the illegal detention often does the extremely severe spiritual harm to the detainees, the state shall give them their mental compensation. Hence, it is necessary for China to improve the lawmaking for the governmental compensation. Simultaneously, towards the aftermath remedy for the transgression of custody, We must investigate and deal with those persons in charge and the others liable who committed the crimes of illegal detaining for their criminal responsibilities. The author thinks that it is more suitable that they shall be punished for the crimes of illegal custody. We should regard it as a severe breach of personal rights and interests, further better tallying with the spirit of the current criminal law, and further better conforming to the legal spirit or gist of the guarantee of human rights.