A Research On The Appliance System Of The Custodial Coercive Measures

The theoretical basis of custodial coercive measures is that the citizens transferred some right to personal freedom in order to protect the public interest. Its practical basis is to prevent criminal suspects and defendants from continued crimes, evading or obstructing the investigation, prosecution and trial. Therefore, the custodial coercive measures have their rationality and necessity. However, due to the legislation, judicial application or any other reasons, the practical application of custodial coercive measures appeared serious deviation. It is becoming a tool of prosecution. Its function of human rights protection has been seriously weakened. With the continuous development of the rule of law, the problems such as extended detention and torture because of the misapplication of custodial coercive measures, has been widely concerned in society. The calls for reforming the application system of custodial coercive measures are increasing. Admittedly, custodial coercive measures play an important role in guaranteeing the suit. However, the citizens’ personal rights, justice, the balance between prosecution and the defense should not be neglected or weakened. It is worthy for us to explore the ways to establish a system which not only meets the needs of human rights protection but also fully embodies the modern rule of law in compliance with the requirements of the modern society under the rule of law. In the perspective of the combination of theory and practice, this paper expounded related issues about custodial coercive measures with the methods of accessing to information, statistical analysis and comparative research. The structure and content of the paper is broadly divided into four sections:The first part mainly focuses on the basic theory of coercive measures. Firstly, the paper described the concept of custodial coercive measures, characteristics and types in detail. Then, this paper explored the legitimacy basis of the custodial coercive measures from the perspective of maintaining the social order, the structure of criminal proceedings and criminal investigative powers.Comparing the common law countries’ custodial coercive measures, such as the United States, the United Kingdom, with the civil law countries’, such as Germany, France, Japan, we can get the following enlightenment:firstly, arrest and custody is separated; secondly, the appliance of the custodial coercive measures is restricted; thirdly, human rights protection is as important as crime combating; finally, the application of the custodial coercive is limited and examined by a neutral organization. These measures have become common practice in these developed countries. However, there are still some problems in China.The third part has introduced the applicable situation of custodial coercive measures and the problems in China. In the perspective of detention’s applicable rate and deadline, arrest’s applicable rate, deadline and the change of the applicable duration rate of arrests measures, this part analysis the detention and arrest’s applicable situation with collating the relevant statistical data. According to the applicable situation of custodial coercive measures, we can grouped the applicable problems of custodial coercive measures into the following five issues:firstly, the appliance rate of the custodial coercive measures is too high; secondly, the design of detention necessity of censorship is unreasonable; thirdly, the alteration mechanism of compulsory measures is unsound; fourthly, the human rights protection in the application of compulsory measures is inadequate; finally, the custodial measures of state compensation standard is unreasonable.Based on the comparison of applicable regime of extraterritorial coercive measures and combining with the custodial coercive measures’applicable situation and problems in China, this paper has raised measures for improving the applicable regime of custodial coercive measures from three major aspects. Firstly, we should update the concepts of the appliance of the custodial coercive measures, including the concept of human rights protection and the principle of non-custodial. Secondly, we should change the content of the custodial coercion measures, including the perfection of arrest and detention’ appliance. This paper proposes five measures from different areas for perfecting the application of arrest:such as setting separate custody procedures, refining the applicable conditions of arrest, extending the detention deadline after arrest, perfecting the detention necessity of censorship, establishing the rights of defense. Then, we should perfect the application of detention from two aspects:limiting the applicable conditions of detention and perfecting the detention deadline. Thirdly, we should improve the remedies of the applicable of custodial coercive measures. For example, setting up the relief means in stages and building up the responsibility mechanism of the false compulsory custody measures are the two effective methods.