On The Construction Of The Judicial Review Mechanism Of The Unconvicted Detention Procedure In China

Unconvicted Detention (UD) refers to the detention during which suspects anddefendants involved in criminal lawsuits are being deprived of freedom before courtverdicts come into force. The judicial review mechanism is a power mechanismwhich empowers detective sectors to review or relieve when citizens’ life, freedomand property are endangered. According to a comparative study, we can see detentionhas not yet been separated from arrest and become a separate and close legal controlsystem. The basic reasons are analyzed for the deficiency of UDP in the judicialreview mechanism. Jurisprudent values and bases of the judicial review mechanismare discussed from the concept of constitutionalism and the concept of the rightprocedure. In addition, the importance, rationality and applicability are attached to theintroduction of UDP into the judicial review mechanism, which results in thepre-modern lay-out and non-judiciary nature and makes introduce UDP into thejudicial review mechanism urgent and necessary. This paper covers causes andduration of applying detention, arrest, detection-detention extension, and detentionwhen prosecution and judgment being reviewed. A general description is also given interms of UD conditions and problems in China. On the basis of a deep analysis ofcurrent unconvicted detention procedure (UDP) in China, problems are pointed out innot having appropriate and effective dependence, preventiveness, proportionality,judicial relief and legality in performing UDP. These problems are used to prove thenon-judiciary nature and deficiency of the judicial review mechanism is most seriousproblem in UDP in China. First, in a lawsuit, the three branches of the judicial systemworking following a flow pattern is the essential systemic hindrance. Second, thedetective mode of the defendant’s confession statement-centered practice makes theutmost hindrance. Third, out-of-date values make the adverse culture background. Onthe basis of the above mentioned, two-step strategies should be taken in theconstruction of the judicial review mechanism of the unconvicted detention procedure in China. The necessity and reality of law reform should be recognized and handledappropriately. The strategies should be done gradually. By examining theprocuratorial power deeply, we can see the ideal of the judicial review mechanism ofUDP is as follows: the judicial review right should be performed wholly by court andjudges. A rudimentary improvement of the current judicial review mechanism of UDPin China is provided in terms of the body, operation, types and ways of the judicialreview, review of appeal and establishing detention re-review.