| According to the judicial practice of the PRC over the years, there exists the situation of emphasis on fighting crimes, neglect of human rights, emphasis on social overall benefits and neglect of individual human rights. The above value pursuit leads to the neglect of the necessity of detention in the legislation and judicial practice."Arrest and detention till the end" has become the common phenomenon in the criminal litigation procedures. However, the mechanism of rights relief and prosecutorial supervision are absent. It is common for "arresting when committing crime". In the meantime, there exist the situations phenomena such as large amount of detention, difficulty in altering coercive measures, overtime detention, using detention to drag on the case and high detention rate in the prosecutorial work. The procuratorial organs, as state legal supervision organ, shall enhance the supervision on criminal detention and right relief. For a long time, the prosecutorial supervision on the necessity of detention is alway blank. The newly promulgated Criminal Procedure Law establishes the system of continuous inspection of the necessity of detention for the first time (the "System"), enhances the protection of rights of criminal suspect and defendant, reflects the respect and protection of human rights and improvement of rules of law, and also strengthen the legal supervision functions of procuratorial organ. However, it is predictable that the application of the System would encounter many specific issues. Currently the judicial offices in various regions of the PRC have made a preliminary trial to the System, which resulting to good effects. This Article emphases on the purpose of the System, analyses the theoretical grounds of the necessity of detention, discover the historical inevitability of its emergency and development through the analysis of value and presentation, and subsequently analyses the specific issues in the judicial practice of the necessity inspection, briefly analyses the bottleneck of the System, and also do prospective study of social innovation and the development and improvement of the System.Chapter one this Article sets forth the purpose to System through analysing the current situation of the detention system of the PRC and foreign countries.Chapter two analyses the value of the detention necessity through the analysis of theoretical and practical grounds to establish the System, sets forth the basic theory of detention necessity, and further the legitimacy to establish the System.Chapter three As the Criminal Procedure Law only provides the inspection of the necessity of detention without detailed stipulation of practical issues, part three discusses the practical application of the System from the term, subject, criteria, contents, initial procedures, processing method and results of the System.Chapter four sets forth the bottleneck of the practice of the System. This part analyses the practical restriction from the respect of Issue on proving the necessity of detention, lack of alternative coercive measures and lag of view of law enforcement so as to analyse how to better carry out the inspection in practice.Chapter five is the prospective thinking of the devolvement and improvement of the System. In view of the issues existing in the arrest and detention in judicial practice, according to the stipulation of inspection of the necessity of detention, in connection with exploration in judicial practice, discuss the prospect of establishment of the System from six respects of establishment and improvement of the supporting mechanism to prove the necessity of detention, promotion of hearing system of inspection of the necessity of detention, improvement of non-detention coercive measures, improvement of the mechanism for lawyers’involvement, carrying out return visit, help and education actively, conducting effective management and control and effective promotion of social management and innovation through the mechanism of inspection of the necessity of detention. |
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