Study To Detention Necessity Censorship

In order to resolve the problems such as “non-release detention” and ”extended detention”, the Criminal Procedural Law revised in 2012 has established censorship on the necessity of detention. Yet, the result is not ideal in practice, which is not in accord with the original intention for establishing the system. Therefore, it is not only beneficial to deepen the theoretical research of this system, but also helps to perfect relevant legislation and to guide the judicial practice if we are to clarify the basis, function and content of censorship, investigating the running situation and problems occur in practice, thus to put forward suggestions to improve the system.Apart from introduction, the main body of this paper consists of three parts with a total of more than thirty thousand words.The first part has discussed the concept, meaning and institutional composition of detention necessity. The censorship of detention necessity is the censorship conducted by Peoples Procuratorate to investigate whether it’s necessary to further detain the suspect or defendant in custody, and to put forward release suggestions or to alter enforcement actions when considered there’s no necessity for further detention. According to the relevant legal interpretation of Criminal Procedural Law, the department responsible for censorship of Peoples Procuratorate includes the investigation and supervision department, the department of public prosecution and department of prison procuratorate; The initiating method can be sorted into ex officio and upon applications.The content of censorship is to study whether there’s necessity to further detain the detainee; The processing method is to put forward release suggestions or to alter enforcement actions when considered there’s no necessity for further detention. Relevant institutions, when receiving suggestions, should notify the Peoples Procuratorate of processing information on time. The natures of this system are mainly legal supervisory and lawsuit function, according to different regulations. As for the institutional composition of detention necessity, this paper will discuss through six points as followings: firstly, the applicable phase should be the time after the arrest and before sentence; secondly, The initiating method can be sorted into ex officio and upon applications; third, the subject for censoring includes the three internal departments of procuratorial organs. Forth, the general reviewing methods are paper review and visiting study; Fifth, the censoring decisions are judgment maintaining, suggestion or decision to alter enforcement measures. Sixth, the censorship should include evidence, and facts, detainees’ social risks, physical conditions, reconsolidation conditions and censorship standards. The meaning of censorship of detention necessity is to resolve the problems of extended detention and illegal detention to some extent, it also helps to conserve judicial resources and protect human rights, bringing practical significance to reinforce supervisory functions of procurator organsThe second part has introduced the first case of detention necessity censorship carried out by procurator organs in various regions as well as the procurator organ censorship system of city C and city Y. In this part, it summaries the charges, applicable litigation phase, initial method, review subject, review method, suggestion reason and suggestion altering adoption conditions of procurator organs in city C, city Y, and various regions. In addition, a simple introduction to the necessity of detention in city C and city Y is made. The procedure of the procurator is to assess the public attention and filing after approving arrestment. In the following procedures, whether the detention necessity censorship procedure is initiated and the length of reviewing period depends on the public attention. The censoring bodies are mainly operating departments and censoring offices. If the two departments received application at the same time, priority should be given to the operating department. After the paper review or hearing review, the censoring body should put forward handling suggestions and handle the case to the person in charge of censoring office for further examination and approval. As for cases of major controversy, it is necessary to notify the procuratorial committee for decision. The censoring results should be notified to the victim, detainee and applicant.In the third part, the paper summarized the insufficiency and reform suggestions for China’s detention necessity censorship system. Firstly, a brief introduction to the conflict point between theoretical and practical circle is made by comparing the initiating method, censoring body, scope, decisions, content and censoring standards with personal views. Secondly, the author has expounded on the insufficiency in censoring, and put forward suggestions for reforming. The main insufficiency lies in the lack of information sources, the lack of censorship motivation, lack of conclusion rigidity. Also, the paper offers resolving methods for the three insufficiencies. Firstly, as for lack of information sources, information sharing mechanism should be made between units of procurator organs and investigation organs, court, prisons and communities. Establish system of right to inform detainee, relative and lawyer. To perfect lawyer system; Secondly, reforming the appraisal mechanism in procurator systems in order to resolve the problem of lack of motivation. Build incentive mechanism for detention censorship. The procurator organs should also establish non-detention risk control mechanism with public security organs and courts, and to formulate evaluation sheet of detention necessity. At last, for lack of conclusion rigidity in censoring results, reviewing guiding investigation mechanism should be enhanced. As for the illegal act conducted by court, advice note for correcting illegal actions should be sent. To perfect alternative enforcement measures.