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The Research On The Review Of The Detention Necessity

Posted on:2015-12-03Degree:MasterType:Thesis
Country:ChinaCandidate:L L SunFull Text:PDF
GTID:2296330461959967Subject:Law
Abstract/Summary:PDF Full Text Request
Human rights protection is the fundamental value and the eternal objective of the modern criminal procedure law. Among the participants of the criminal proceedings, the suspects and the defendants’human rights are too easy to be violated by the public authority because of their special legal situation. So the protection system of the suspects and defendants’rights is the indicator and the foundation of the criminal procedure law. When the suspects and defendants are tortured or arrested arbitrarily, we cannot say it is civilized country.In the midst of the human rights system, the detention should be focused particularly because of the destructiveness to the rights of the detainees.The operation of the detention system has come across lots of problems in China. Prolongeddetention decisions are made without enough supervision and the high rate of the unnecessary detention are so hard to be lower. Lots of Campaign-style reviews have been implemented trying to settle all those problems, but the achievements are hard to maintain. Consolidated legal provision cannot be founded. Fortunately,the amendment of the criminal procedure law has been approved by the top legislature, in which the review system of the detention necessity has been recorded.It’s designed to reduce the illegal and unnecessary detention by judicial review. It has to say it’s the fruit of the human rights theory. The establishment of the review system will promote the protection of the suspects and defendants who have no need to be detained. But we have to make it clear that the review system still faces many obstacles. Even the legal provision is not thorough enough to the extent that it’s hard to be enforced. We have to overcome all those obstacles.The thesis is divided into three chapters. The first chapter makes a summary of the review of the detention necessity theory, including the conception, the legal nature of the theory, the legitimacy and the legislative significance of the judicial review of the detention necessity theory. The second chapter analyzes the environment of the law enforcement and the reasons why the problems are so serious. By the analysis, we know because of the judicial traditions, the ambiguous legal provisions and insufficient supporting mechanism, the detention practice is easy to be unlawful.The last chapter tries to propose some suggestions according to the reasons concluded in the Chapter 2. On the basis of the opinion from overseas and the academia, the following suggestions are feasible. To make the legal status of the detention clear by make a distinction between the custody and the arrest. This is the basis of the review of the detention necessity. To make up the shortage of the law provisions for better and legal enforcement, especially the censorship body, review target and the review period. Finally the supporting mechanism should be strengthened. The investigating capacity, the communication system and the substitutive measures of detention should be intensified.
Keywords/Search Tags:review of the detention necessity, alternative measures of detention, human rights protection
PDF Full Text Request
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