Discussion On The Pending Custody System

Pending custody herein refers to the deprivation of liberty before trial. It enables the investigating authorities to prevent the suspect or the accused to flee; to preserve evidence, which ensure the smooth conduct of the proceedings; or to prevent the re-offending of suspect or the accused.There are abuses in China’s custody pending practice. It becomes a tool to obtain confessions and an advanced means of punishment. The root cause of this situation is that pending custody becomes an appendage of the criminal proceedings in China. There is no clear provision or regulation which stipulates pending custody, and it is not an independent criminal coercive measures. At present, the main reason, of many wrong criminal cases is torture, detention pending and the tendency of the custody pending becoming pragmatic tools offer the investigating authorities more time to obtain the suspect’s confession. In order to reduce wrong criminal cases effectively, and to eliminate abuses in custody, pending custody system must be independent.Along with the above ideas, the paper is structured as follows:The first chapter is an overview of pending custody system, which discusses the concept of pending custody, its characteristics, and applicable principles of pending custody in criminal justice. Pending custody is the deprivation of liberty before trial. It enables the investigating authorities to prevent the suspect or the accused to flee; to preserve evidence, which ensure the smooth conduct of the proceedings; or to prevent the re-offending of suspect or the accused. According to the concept of pretrial custody and its practical characteristics, it has the characteristics of violating human rights; opening to abuse; contrary to the presumption of innocence; weakening the defense right. In order to reconcile the contradictions between pending custody and the principle of no presumption in criminal proceedings, also to allow pending custody to play a positive role, pending custody in practice needs to follow the principles of certainty and predictability of the law; the principles of authorization and significance of the law; the principles of proportionality, and the principles of protection of essential content.The second chapter is a discussion of China pending custody system, including:the existing provisions of the law relating to pretrial custody, measures of pending custody issues in the past, characteristics of detention pending in China. The current law of China does not specify pending custody system; custody pending regulatory statute sporadically attached to detention, arrest and other laws and regulations.The problem of extended detention was not solved by constraining public authority through legislation, but by political activities. The necessary censorship of custody regulation of the new Criminal Procedure Code can not solve problems of custody issue in practice. Scholars concern themselves with the problems mentioned above, while the legislative process is slow. But The way to solve the Custody in China can not tough the core and the issue can’t be resolved by political movement or incomplete criminal procedure regulation.The third chapter is an introduction on pending custody system about the other country.The reason of custody is stipulated by listing technique and exclusive method in German criminal proceedings. The condition of custody is distinguished by the misdemeanor or the felony. The term of custody is distinguished by the custody purpose.The pending custody system about Japan is comprehensive.Though pending custody was treated as a punishment instead of arrest in Japan, the bad results will be limited by the developed lawyer system and legal aid system.The custody is distinguished the misdemeanor custody and the felony custody in France.The suspect has the right of release on bail at the most of time in he United Kingdom.In the United States,the pending custody is aimed at protecting the litigation and the prevention of crime.The fourth chapter discusses how to make China’s pending custody system became reasonable. The reason of the special discussion about custody review subject,is to emphasize the importance of independent and neutral of pending custody review subject. It’s very difficult to keep the independence and neutral of pending custody in China, because the substantive law is always important than the procedural law. If we want the pending custody work well, the substantive law and the procedural law must be consummated at the same time.An effective remedy for pending custody is an important aspect of pending custody system.