The Study On Risk-controlling The Application Of Pre-trial Detention

In the judicial practice, it has been the subject of academia and practical circles attach great importance to that the applicable rate of pre-trial detention is too high. That the provisions of the existing law for the applicable conditions of pre-trial detention is too conceptual and lack of maneuverability, is causing a series of serious problems that harm the legitimate rights and interests of criminal suspects, such as "constitute a crime shall be detained","custody instead of investigation". The revision of the Criminal Procedure Law has made significant changes in the applicable conditions of pre-trial detention, but the discretion of the judiciary has not been enough restricted, not enough to change the status quo of pre-trial detention abused. In this paper, by means of risk management theory, the legitimacy of pre-trial detention as a risk is analyzed and assessed, in order to effectively control the applicable rate of pre-trial detention.The paper firstly provides an overview of the applicable current situation of pre-trial detention. Through statistical analysis of the situation of a city procuratorial organs five years (2007-2011) applying pre-trial detention, it summed up the problems in the practice, such as "higher rate of pre-trial detention approved","higher rate of criminal suspect in custody","higher rate of suspects in custody sentenced to light punishment","lower applicable rate of defect in arrest necessity". At the same time, cited empirical conclusions of other regions on pre-trial detention application, it explains the status quo of pre-trial detention abused practically. Cited various viewpoints of academia relating to the causes of pre-trial detention abused and how to effectively control the pre-trial detention application, it thinks the key to control the applicable rate of pre-trial detention is not to reform the existing legal system, but in the framework of the existing legal system, to compression the space of pre-trial detention discretion as far as possible through strict and meticulous design of the system, in order to procure the applicable rules of pre-trial detention so rigorous that any state organs exercise the power in necessary constraints, which have more practical significance. The paper mainly elaborated the ideas and methods to control the application of pre-trial detention with the risk management theory. Firstly, it outlines the perception on the risk of applying pre-trial detention. It discusses the feasibility to control the applicable rate of pre-trial detention with the risk management theory. To or not to apply pre-trial detention, is mainly based on expectations for the future. The expectations may be deviate from the actual results in the future. That this deviation as the risk of applying pre-trial detention assessed with the risk management theory and methods, have the realization of pre-trial detention legitimacy been more possibility. Through analyzing the provisions of the new Criminal Procedure Law, the reasons of pre-trial detention are summarized as three types of situations. It maintains that the key to control the applicable rate of pre-trial detention is controlling the application of pre-trial detention under normal conditions, especially to verify or refute the establishment of five grounds for pre-trial detention in the legal. It elaborates that the risk of non-applying pre-trial detention up to a certain extent as a precondition of applying pre-trial detention is consistent with the requirements of the principle of necessity, and the risk should depend on the five grounds for pre-trial detention in the legal. Secondly, it discusses the influencing factors for the risk of pre-trial detention. The risk of non-applying pre-trial detention divided into two categories based on the five grounds for pre-trial detention in the legal, the one is the procedural safeguards risk to affect the smooth conduct of proceedings, and the other is the risk of harm to society to occurred new harm social behavior. The former includes escape, suicide and the preservation of evidence (destroying, falsifying evidence, to interfere with a witness to give evidence or tally confessions), and the latter includes the recidivism (committing the new crime), hindering the safety and order (endangering national security, public security or social order), retaliation (to retaliate against the victims, informants and accused person). The paper analyzes and summed up the influencing factors for the risk of pre-trial detention, based on the statistics of procuratorial organs, and the academic research about the escape, suicide, and preservation of evidence, recidivism, hindering the safety and order, retaliation. Finally, the paper uses the Risk Assessment method of representing different risk with different figures. It espectively assesses the risk factors previously summarized and given the degree of risk evaluation value. The risk of escape, suicide, preservation of evidence, recidivism, hindering the safety and order, retaliation is espectively systematic assessed. It maintains that the systematic evaluation value for the degree of risk up to a certain standard means that the risk may occur and pre-trial detention should be applied.Improve the applicable procedures of pre-trail detention is the purpose of writing papers. The paper discusses the feasibility and necessity to establish the mechanism of risk assessment for the pre-trail detention, and instructions on how to create such a mechanism. In order to ensure that the risk assessment mechanism can play its role, the paper presents the suggestion to improve the security mechanism on the applicable procedures of pre-trail detention. Accountability System should be established in order to procure the undertaker assessing the applicable risk more rigorous and carefully, urge the department heads and the Attorney General adopting the correct opinions, preclude the arbitrariness of pre-trail detention applied. The mechanism of listening to the views of both sides should be sounded in order to make the judicial officers clearer grasp of the whole case and more objective analyzing, identifying the legitimacy of pre-trial detention. The judicial relief system for suspects and defendants should be improved in order to ensure the improper and illegal detention detected and corrected timely, which can protect the legitimate rights and interests of the parties. Controlling the applicable rate of pre-trial detention is also subject to the perfection of alternative measures, the paper cited the bail system’ defects, proposes the opinions to perfect the bail system in lieu of the pre-trial detention.According to the risk management theory, research on the risk of non-applying pre-trial detention should be established on the full investigation of past risk and a lot of statistics, in order to find problems, summarize rules, accurately estimate the influencing factors for the risk of pre-trial detention. However, because of the limited capacity, the author can only put forward some ideas based on limited information and academic research, which inevitably contains some subjective estimations relying on the author’s personal practical experience on undertaking pre-trail detention procedure. But the limitation should not overshadow the value of risk management theory for controlling the applicable rate of pre-trial detention, and the positive significance and practical value of risk assessment for limiting discretion in the pre-trail detention procedure and protecting the legitimacy of pre-trail detention. The paper will provide some suggestions for the legal theory research on the pre-trail detention procedure, and some reference for the practical exploration on controlling the application of pre-trail detention, in order to gradually justify the application of pre-trail detention.