Study On Judicial Supervision Of Criminal Detention

Criminal Detention is one of the five criminal coercive measures, and has significant position in Chinese criminal procedure. But it always be denounced by scholars, because it can practically deprive the liberty of criminal suspects without effective control, and even the time can extent to 37 days. In fact, a serial of phenomena that contradict the idea of rule of law have emerged within the judicial practice. The real situation of criminal detention is miles away from its original intention. To restrict the criminal detention has become a common understanding in the fields of law.Because of the power's coercive attribute and its double-edges, people have to think how to control power, make the best use of the power, promote the beneficial and abolish the harmful. After hundreds and thousands attempts and fails, the separation and restriction of power became the best choice in real world. Through the development of countries ruled by law, the primary function of judicial review is controlling administrative power; judiciary is the only choice to control and supervise investigative power which actually belongs to the administrative power.Controlling and combating criminal is a function of every country. Criminal coercive measures which are analogous to criminal detention also exist in the criminal procedure of foreign countries. The coercive measures which deprive the liberty of suspects provisionally should be controlled and restricted strictly in the USA, Germany and Japan. Their legality should be investigated by neutral judiciary before and after their execution. The coercive measures which deprive the liberty of suspects provisionally should be put into effect after obtained the orders issued by judiciary on principle; advance arrest suspects without orders can by considered as exceptions of judicial review system. The suspects should be taken before a magistrate judge without unnecessary delay. The judge can review the legality of arrest and decide whether to keep detention or release. The system of coercive measure in China is different form that in foreign countries, and there is big difference in organization structuring and power allocation between China and any other countries. The European Convention on Human Rights and the cases in European Court of Human Rights manifest the universal value in international criminal procedure, and they prove a new idea how to use the experience of other countries for reference and reform our criminal detention system. Don't stick to the letters of organizations'name, even they are translated names, but rather the nature of coercive measures and the function of organization. Thus we can treat and compare between Chinese legal system and foreign legal system on a more equal platform. And we can find some thing in common in the international criminal procedure.There are many reasons which result in the disorganization of criminal detention. This paper argues the primary reason is almost no one can control and supervise the decision, term and revocation of criminal detention. At present, the only procuratorial supervision also has a lot of problems, such as unitary and inefficient method, dispersed supervision power, being deficient in autonomy and heteronomy. The judicial supervision of criminal detention need prompt establishment of institutions from all angles.This paper argues that people's procuratorate is equipped with the precondition of judicial supervision, relative independence and neutrality of organization. They are similar to the judge or magistrate in foreign countries. Division of functions and powers between supervision over crime investigation and prosecution make the procuratorate perform its duty better. Granting the power and duty of judicial supervision over criminal detention to people's procuratorate is the core and starting point of institution. The power of applying for criminal detention belongs to the public security organs, and the decision of detention should be made by procuratorate. The latter should review the validity of application, decide whether arrest the suspects and issue the detention order.In case of an emergency, the public security organ can arrest suspects without detention order according to the clauses about culprits red-handed in Criminal Procedural Law. Structure the register system of criminal detention, no matter in what situation, police should notice the procuratorate about criminal detention, and suspects should be taken before the procurator as soon as possible in legal term. In general, suspects should be taken to procuratorate in 3 days after his arrest. In particular cases, the term can be extended to 7days. Integrate the judicial supervision of criminal detention with existing procedure of reviewing and approving an arrest. The procuratorate can impose sanction when the behavior of criminal detention is illegal, such as release the suspect and reject the evidences obtained through the illegal detention. At the same time, the regulation about autonomy and heteronomy of procuratorate need to be constructed.