The Application And Improvement Of Non-custodial Criminal Compulsory Measures

The value of criminal compulsory measure is crime fighting and the protectionof rights. The criminal compulsory measure in china appears function imbalance. Itemphasizes criminal prosecution and ignores the protection of rights. This imbalancein the judicial practice is overtime detention, illegal detention and torture, even theunjust cases. It is great harm. The reason is that the protection of right is not carriedout to the end in the legislation and system is not designed according it. It is the samein the administration of justice. It is not following the law correctly.Under the rule of law era, no matter legislation or administration, it can besolved though the legal system. Through the perfection of legislation, the reasonablecompulsory measure system can be built, to construct effective illegal supervisionmechanism and finally to form a scientific strict legal regulation. Through theperfection of legislation to realize the protection of human rights, it needs the systemdesignation can satisfy the enlarged use of the non-custodial compulsory measures.The perfection and enlarged use of the non-custodial compulsory measures is the onlyroad to solve the protection of right in the criminal litigation in china. It can beproved either from the perspective of the generation mechanism of human rightsviolations or existing practice experience from abroad. So, this article studies theperfection of the non-custodial compulsory measures in china.Custody and non-custody are in fact two sides of one question. Criminalcompulsory measure system is overall a part. This article puts non-custodialcompulsory measures in the whole compulsory measures and uses the methods ofinduction, comparison, deduction. First, it is the concept and the nature ofnon-custodial compulsory measures. Then it evaluates the non-custodial compulsorymeasures now in our country and concludes that the question of this area is the lowapplicable rate of non-custodial compulsory measures. In order to expand theapplication of non-custodial compulsory measures, this article puts forward theseparation system of arrest and custody and the improvement of bail system. At the same time, it proposed the improvement of non-custodial compulsory measures nowin our country.The preface introduces why to choose the non-custodial compulsory measures asthe topic. It is because there are people rights violating in the process of using thecompulsory measures and it can be solved through the improvement of system. At thesame time, it introduces the design of the paper;Part one: The author proposed the concept of compulsory measures and that ofnon-custodial compulsory measures on the basis of the scholars’ in and out of china.And then, it deals with the preventability of non-custodial compulsory measures. Andthen, it introduces three kinds of non-custodial compulsory measures, such as bailsystem. At last, it proposes principles of non-custodial compulsory measures, such asproportion system.Part two: It judges the current situation of non-custodial compulsory measures inour country. It discoveries the excessive use of the non-custodial compulsorymeasures is obvious, which is not good for the pretention of the human rights. Thereason is there are many inadequate in the integration of arrest and custody and thenon-custodial compulsory measures itself.Part three: It argues the method to improve the non-custodial compulsorymeasures in our country is the protection of the human rights. It is necessary toincrease the profit of the law. It puts forward the whole composition of itsimprovement, which emphasize the separation system of arrest and custody, theestablishment of judicial review system and the improvement of non-custodialcompulsory measures.Part four: It points out that the separation system of arrest and custody and theimprovement of bail system are the precondition of non-custodial compulsorymeasures. It designs the separation system of arrest and custody, which makes thecourt to decide the custody. The other side, it discusses how to improve the separationsystem of arrest and custody from setting up the right consciousness, making thestandard clear, improving the guarantee method and increasing the penalties. Part five: It finds out the questions of subpoena and residential surveillance andputs out the countermeasure. It tries to make non-custodial compulsory measuresmore scientific, reasonable and cooperate closely and give full play to the functionand the value of each kind of compulsory measures through these tow measures.