The Discussion Of Review On The Necessity Of Detention

With development of democratic politics and legal system in different countries, the concept of Human rights is also gradually to be highlighted in the system of detention. In order to maintain social order and make the process of criminal lawsuit to be smoothly, all countries established their detention systems based on their own social condition and economical basis. Limit and relief are important aspects in the detention systems which cannot be overlooked. However, our Criminal Procedural Law doesn’t regulate the judicial remedy system of detention. High detaining rate and extending detention are emerging one after another. The existence of these problems has greatly hindered the further development of China’s criminal justice. In 2012, the new Criminal Procedural Law established the review on the necessity of detention, filling the blank of China’s relevant legislations. It is also a great progress in the legislation for criminal lawsuits. Although the review on the necessity of detention was established in our country, it still at a primary stage of system development. In addition, increasing problems come forth in justice practice. For this reason, it is necessary to draw lessons from fairly sophisticated theories and experiences in abroad to develop the system of review on the necessity of detention in our country.This article is divided into three parts:The first part is a general summary of the review on the necessity of detention. This part begins with the interpretation of the concept of "detention". The concept and connotation of the review on the necessity of pretrial detention will be clarified clearly by differentiating the system of China from those of other countries. The theoretical basis of the review on the necessity of detention in our country will be elaborated from five aspects, including the protection of human rights, Power restriction, Presumption of innocence, the principle of proportionality, and the criminal policy of tempering justice with mercy.The second part makes a comparative study of the review on the necessity of detention in our country and the judicial remedy system of detention. We will be blessed with plentiful finer inspiration by making such a comparative study, such as ensuring detainees’ right of action and right to debate, perfecting corresponding systems and so on. A summative evaluation of the successful experiences of other countries will pave the way for the last part of the discussion.The third part mainly elaborates the suggestions on completing the review on the necessity of detention in China. This part will offer recommendations to the review on the necessity of detention mainly from theoretical construction. Strengthen the theoretical construction of the review on the necessity of detention. Therefore, the statutory principle of detention, independence principle of detention, proportion principle of detention and the principle of effective relief should be introduced into our legislation.The last part will offer recommendations to the review on the necessity of detention mainly from institution construction. We should refer to the successful experiences of other countries and make suggestions on the system itself and relevant accessory institution from five aspects.