On The Improvement Of Pre-trial Systems Of Detention

If the criminal law is the Great Charter of offender’s rights, the criminalprocedure law can be seen as the Great Charter of defendant. When the crimemanifests a conflict or confront between the individual and nation or society, facingwith the prosecution of state power, the weak position of the accused is apparent.The basic right of individual is very likely to be abused by the misuse of state power.Under the great disparity of the two sides, in order to guarantee the rationality of thecontradiction of the accuser and the defender, the protection of the human rights ofthe accused should be focused. The nature of criminal procedure determines theprotection of the human rights of the accused will be the eternal theme. With theadoption of the modification of criminal procedure law by the Second Session of theEleventh National People’s Congress, the protection of human rights was signed intoArticle2of the general rule of Chinese Criminal Procedural Law, which highlightsthe progress of the new law on legislative level and brings the Chinese Criminal lawacting on international convention. Comparing with the detention or arrest, pretrial detention has a closer relationship with human rights, for it can restrict the personalfreedom for a long time. When the personal freedom is separated from the outsideworld temporarily, the human rights is out of the question.However, pretrial systems of detention didn’t get enough attention in thetheoretical research of the law, and the problems in judicial practice take placefrequently, such as the injustice case of Zhao Zuolin, She Xianglin,“hide and seek”.Due to the irregular judicial procedure of pretrial detention, the human rights ofcitizen are violated frequently on the process of pretrial detention. In the previoustheoretical research of criminal in our country, there is little study on the protectionof human rights, especially the theory between pretrial system of detention and theprotection of human rights. There is no further study in theory, but just focusing onthe discussion of the system. Therefore, it is necessary to reconstruct the pretrialsystems of detention from the perspective of the protection of human rights. Thethesis takes the defects in the pretrial systems of detention as entry point, anddivided into five parts:Part1: Basic concept of pretrial systems of detention. First, the author focuses on the concept of pretrial systems of detention, including the implementation phaseof pretrial detention, the accurate meaning of pretrial detention the differencebetween detention and arrest. Second, the author focuses on the nature of pretrialsystems of detention. Pretrial detention aims at guaranteeing the carrying out of thecriminal procedure smoothly. Therefore, the legal nature of pretrial detention ispreventive, compulsory, temporary, exception and legality. Third, the authordiscusses the purpose of pretrial detention. Pretrial detention is a measure toguarantee the criminal procedure and it is a necessary measure to punish crimes bythe government. While at the same time, we should try to prevent the violation ofindividual rights by the state power, that is, the protection of the human rights.Therefore, the implementation of pretrial detention has two purposes: crime controland human rights protection.Part2: Brief introduction to the pretrial systems of detention abroad. We beganlate in pretrial systems of detention. There are problems both in theory and practice.So we should use the advanced system and experience abroad. This part focuses onthe introduction to the scientific principle of law and advanced legal system abroad. The systems of detention abroad varied with their own characteristics. Theircommon feature is attaching importance to the protection of human rights.Part3: The internal relation between pretrial detention and protection of humanrights. The purpose of pretrial detention determines the close relationship withhuman rights. In order to guarantee the smooth progress of criminal procedure andthe human rights of the majority of people, it is necessary to implement pretrialdetention to the suspect. If the design of pretrial detention is unscientific andirregular, it is likely to violate the human right of individuals. Therefore, it isnecessary to balance the necessity of the implementation of pretrial detention and thepurpose of the protection of human rights.Part4: the problems and defects of pretrial systems of detention in our country.The problem lies in that the pretrial system of detention is not a closed system. Thedependent of pretrial detention manifests as the confusion of pretrial detention withdetention and arrest. The term in custody is equal to the duration of handling the case.The place of custody is not neutral as a legal criminal compulsory measure asdetention or arrest, but an inevitable result or natural state of detention or arrest. There is no judicial review in advance and no judicial remedy afterwards. IN judicialpractice, the violation on the human rights happens quite often in pretrial detention.Part5: Reconstruction of pretrial systems of detention. Considering theproblems in pretrial systems of detention in our country, the reconstruction of pretrialsystems of detention should be on the basis of introduction of the protection ofhuman rights, including the legal concept, legal principle and specific system.Basically, the pretrial systems of detention should conform to the requirement of theconstitution and the new criminal law which can control the crime and protect thehuman rights.