The Research On The System Of Reviewing The Need For Detaining After Arrestment

Detaining after arrestment, means custody after the arrestment of criminal suspect or defendant. As a measure of depriving personal freedom before the people’s court making the binding judgement, Detaining after arrestment is not only contrary to principle of the presumption of innocence internationally recognized, but also causing the most serious damage to human basic rights of criminal suspect or defendant. In view of this, modern countries under the rule of law one after another regulate this kind of behaviour, formulating that detaining must be based on the necessity, and providing a range of remedies. There is legal blank in our criminal procedure law of our country for a long time on supervision and relief of detaining after arrestment, the establishment of the system on reviewing the need for detaining after arrestment this time complies with the international trend, reflecting the prudent view on applying of detaining after arrestment and attention and concentration on people’s basic rights, it is of great significance for reducing improper custody and protecting basic rights of detainee, it is the great progress of criminal lawsuit legislation in our country. Of course, differing from judicial review mechanism of reviewing the need for detaining after arrestment, our system essentially belong to the litigation supervision mechanism, it is substantively a representation of legal supervision of The People’s Procuratorate.The establishment of the system on reviewing the need for detaining after arrestment in China is not the result of working behind closed doors of the legislature, it has profound historical background and realistic foundation. For judicial reality of high detention ratio and extended detention phenomenon in our courtry, as well as system defects of the lack of relief measures of custody, the theoretical circle and practical departments has already given enough attention and has conducted beneficial exploration and pilot, the system on reviewing the need for detaining after arrestment is signed into law this time can be said to a rational choice of the legislature, has valid realistic basis.At the same time, the establishment of the system on reviewing the need for detaining after arrestment in our country also has a profound theoretical basis. it is not only the embodiment of basic philosophy on respecting and guaranteeing human rights, but also an important symbol of the criminal procedure law act as power restriction law, it well fills the blank of power supervision and constraint, it not only contains the basic spirit of presumption of innocence, but also meet the objective requirement of the principle of litigation economy, it is conducive to save the judicial resources and optimize the allocation of resources. In the end, it is a positive response of the basic criminal policy of justice tempered with mercy, it can realize discriminatory treat of suspect.For the system on reviewing the need for detaining after arrestment, only one deficiency is that our current criminal procedural law has only a principle rule, not enough to standard and guide the practice effectively. To this, Supreme People’s Court and Supreme People’s Procuratorate and Ministry of Public Security stipulate their respective responsibilities in the latest judicial interpretation and procedure rules, but from articles of law, it is still not detailed and comprehensive enough. Therefore, it is necessary to conduct a comprehensive analysis of the system on reviewing the need for detaining after arrestment, including applicable procedure, object and scope of case, the starting subject and reviewing subject, content and pattern, interval and procedure, dispose and so on.The operation of any system, of course, is inseparable from the related supporting measures, in the time of establishing system on reviewing the need for detaining after arrestment, it also need to set up a series of supporting systems, such as rights inform beforehand and reason description afterward, assessment mechanism of detention necessity, internal information sharing mechanism of The People’s Procuratorate, performance evaluation mechanism on reviewing work of detention necessity and consummate alternative measures of custody and so on, so that providing strong external force and effect for the system on reviewing the need for detaining after arrestment, ensuring the reviewing work of detention necessity go with a swing, and achieving the effect of the system which should have.