The Analysis On "Faquan" Of Criminal Compulsory Measures In The New "Criminal Procedural Law"

Right and power shift, right should be the purpose of power. In2012,the new "Criminal Procedure Law" is full of contest between power andright, the most significant of which is reflected in the criminalcompulsory measures. Comparison of new and old law shows althoughthe compulsory measures revised is more complete and scientific than theoriginal method in the system, and the changes in some details alsoreflect the tendency of human rights protection, it shows a seriousone-sided tendency in relation to the structural balance of power andrights, namely the power expansion is more than human rights protection.Time of compulsory summon prolongs, the way of execution changes;Bail is truncated in using, margin confiscation procedure lacks reliefchannels; Residential surveillance extends in the designated residence,families’ right to know is severely weakened; Secret detention is "legitimacy", the power sector lacks effective control with each other;pretrial detention is the adjoin state in the course of arrest, and so on. Allthese indicate that law not only fails to achieve the "milepostsignificance" in height, but also let power be super, which reverses theright relationship between power and right, not to clarify the relationshipbetween the fight against crime and the protection of human rights.In short, the new law not only has no progress, but also hasregressed to a certain extent. The new law revised contains a great deal ofhuman rights crisis. In order to defuse this human rights crisis, it needs togive full play to the function of legal interpretation and application of law,protect human rights using constitutional ideas, regulate law enforcementand judicial power with the due process as value goal, design the systemwith the structure of power supervision and power restriction, and put theidea of protecting human rights in the constitution into practice with thejustice system design.