Study On The Perfection Of Legislation About The Applicable Conditions Of Pretrial Detention Of Our Country

Pretrial detention system is a system widely accepted and applied around the world, because it plays an extremely important role in the ensuring of the smooth conduct of criminal proceedings. It is very obvious that pretrial detention plays an active role to criminal proceedings, but if the applicable conditions of pretrial detention are not strictly stipulated, it may become the tool of the undue restricting of the suspects’freedom. Through the comparation of the rules of applications conditions between the western countries, such as Germany, France, American and the United Kingdom, and China, this paper has found out some references from the western countries and gives some advice for the perfection of the applicable conditions of pretrial detention. This paper can be divided into four parts.The first part is about the introduction of pretrial detention. It mainly contains the concept and the functions of pretrial detention. Pretrial detention can not only ensure the smoothly running of litigation activities, but also prevent the criminal suspect from committing crimes again.The second part gives an introduction to the rules of the applicable conditions of pretrial detentions and finds out some references for our country. Through the recommendation of the rules in western countries such as Germany, France, American and the United Kingdom, some references has been found out:detention writs should be signed before the application of pretrial detention; moreover, sufficient reasons are required; the application of pretrial detention should accord the principle of proportion.The third part introduces the rules of the applicable conditions of our country and points out the problems of the rules. There are three problems. The first one is that the applicable conditions don’t accord to the principle of proportion. The second is the unclearness about who is the subject of the necessity review of detention. The third is that the targets of the necessity review of detention are not completely included.The fourth part gives some legislative advice for the solution of the above problems. The application of pretrial detention should be differed according to the different conditions. The subject of the necessity review of detention should be the Prisons procuratorial departments. The detention after the custody should also be one of its targets.In this paper, I have applied the method of comparison, the historical analyses, the inductive method, and reasoning method.