The Theory Of The Reform And Reconstruction Of Pretrial Detention System In China

Pretrial detention is an important part of the criminal judicial system, which is also one of the most controversial parts to the legalization and democratization of the criminal proceedings, even the whole procedural law system. As the famous Chinese scholar in the field of criminal procedural law, Chen Ruihua says:"The status of the planning and practicing of the pretrial system can basically reflect a country’s legalization standard of criminal coercive measures. " However, China still has a long way to go in perfecting the pretrial detention system and extinguishing the unlawful acts in this field.The writer goes deep analysis of the systemic problems exposed in judicial practicing by the currant, and does empirical study on rules and regulations in force by using the mature system of other countries with adequate legal systems for reference, in order to give advice for improving the system.This paper consists of four chapters.Chapter one:First of all, the writer introduces the connotation and the function of the pretrial detention from the theoretical point of view, followed by introduction of the rational basis and restrictive theory of pretrial detention, which described the conflicts between the necessity of the existence of pretrial detention, "to protect criminal proceedings" and the concept of freedom, human rights, and limitation of government power. These two different theories reflect the different values, and pretrial detention system would find itself a reasonable position in criminal proceedings only if it embodies both two values.Chapter two:The writer introduces and analyzes several countries’legal regulations of pretrial detention, which present either Continental Legal System or Anglo-American Legal System, mostly focusing on the regulations of reviewing process, conditions of application, duration, the way to relieve, etc. and concludes six principles of pretrial detention as a result, as the reference for China to improve the pretrial detention system.Chapter three:The writer first summarizes the four main problems about currant pretrial detention in prosecution practice in China, which are high application rate, absence of review system, Illegal phenomenon appearing from time to time, and too long period of detention which affects the judgment, and then points out four institutional reasons of the above problems, which are the status of taking detection as the center, non-judicial detention procedure, determining the detention period according to the detective time, and the administrative relief mechanism.Chapter four:In order to ensure the legitimacy and necessity of the pretrial detention and realize the purpose of prosecuting suspects and protecting human rights as well, the writer advises to improve and perfect the pretrial detention system by clearing the purpose, apposing it with arrestment, refining the applying conditions, establishing judicial review mechanism, controlling time limit tightly, improving the legal remedy system, est., and to reduce the use of pretrial detention by improving the released on bail system as the alternative measure by combining the new concept of community corrections.