Research On The Review Mechanism Of Necessity Of The Detains Behind Arrest

In order to ensure the smooth operation of the criminal proceedings, and prevent new possible criminal acts of the criminal suspects and the accused, detention, arrest and custody is the most common security measure and enforcement measures in criminal procedure. In our country, the implementation of the measures for the criminal suspects and defendants in detention, arrest, custody and other compulsory measures are very common, the purpose of which is to combat crime effectively, to prevent the behavior of harming the social by the criminals and ultimately to ensure the smooth operation of the criminal procedure. But at the same time, the excessive use of coercive measures can cause a certain degree of damage to the legal rights of the criminal suspects and the defendants, so in practice of criminal proceedings, custody exist many problems and some controversy in theoretical, and reform is difficult in practice.In 2012, China’s criminal procedure law has been revised and improved substantially, and explicitly stipulated the procuratorial organs should review the necessity of custody after the criminal suspects and defendants were arrested, and at the same time stipulated the responsibilities of the public security organs and people’s courts. The establishment of the review mechanism of the necessity of detains behind arrest, strengthens the legal supervision of the procuratorial organs to the measures of arrest and custody, and reflects the value pursuit of human rights protection. It is a concrete manifestation of the power restriction, reflects the comprehensive consideration for the social benefits.However, in practice of judicial, because the criminal justice policy in China has long pursued goal is to combat crime and maintain social stability as the theme, led to the detains behind arrest system in China has many problems. Its outstanding performance in:arrest means custody, the time of detains behind arrest is too long, there is no perfect review mechanism of custody necessity, there is no provision for the duration of custody, the parties cannot participate in the decision of custody, have no right to comment, to seek relief, and fewer changes after the custody and other compulsory measures, resulting in a high rate of detains behind arrest, and extended detention, and even more serious phenomenon of extorting a confession by torture. Analysis of its causes from the institutional, mainly lies in the unity of arrest and custody system in our country lacks the flexibility and the implementation of procedures to the review mechanism of custody necessity is too principle and simple, and alternative measures are not perfect, and the lack of lawyers involved in the review process.Although the review mechanism of detains behind arrest necessity are still many problems in the specific operation process, in the legislation has taken a significant step, reflects our rule of the law of the respect and safeguard human rights. With the implementation of the new "Criminal Procedure Law" and "Criminal Procedure Rules", the review mechanism of detains behind arrest necessity will be implement, and in the protection of the rights of detainees will be more perfect. Aiming at the existing problems of China’s system of necessity of detains behind arrest, should promptly improve necessity of detains behind arrest review of the operating mechanism. By strengthening system construction to achieve the value goal of the protection of human rights; through improving alternative measures to do a good job of system connection; by guiding lawyer to participate actively in order to improve the openness and transparency of the review, through constructing the relevant supporting measures to enhance the effectiveness of the review; Meanwhile, procuratorial organs as the main body of necessity of detains behind arrest review mechanisms, should attach great importance of focus on the cohesion of alternative measures in the system implementation, promoting the operability of the necessity of detains behind arrest review mechanisms in practice, effectively reducing the custody of the criminal suspects after was arrested, by improving the quality of custody to achieve the ultimate goal of respect and safeguard human rights.