On Investigation Of The Necessity Of Custody Examination System

In the field of criminal justice, the suspect or the defendant’s personal freedom before thecourt’s final judgment limited by the investigation organ for a long time has been moreprominent phenomenon, long time arrest, even extended detention are common occurrences,which is not only a violation of basic human rights of criminal suspects and defendants, alsocontrary to the spirit of the rule of law on the presumption of innocence, more seriouslydamage the credibility of the judiciary. Criminal Procedure Law of2012on page93made a"after the suspect or defendant was arrested, The People’s Procuratorate shall continue toreview the necessity of arrest" provision, marking the initial establishment in our custodynecessary examination system. In this paper, Based on the background of the implementationstatus of custody necessary examination system, through the analysis of problems and causesin the implementation, then put forward the corresponding improvement suggestions. Inaddition to the introduction and conclusion, the text is divided into four parts:The first part describes the current situation. The necessity of custody examinationsystem in A’s status of implementation as the main line from January to August,2013, throughthe analysis of15specific cases, profiles of their way at startup, startup reason, the sector andstage of review, the basic operation of the types of cases, the results of the review, and thereasons for the change, such as the state of six aspects.The second part is to show the problem. First, subjective awareness of the problem,including power shortage both prosecutors apply for custody of the need for censorship,psychological fear of difficulty of lawyers; second, objective operational issues, includinglack of neutrality of the review body, scope of review is narrow, single-start mode, time andduration of the review is not clear, lawyers involved less, some do not know how to reviewthe trial phase, inadequate enforcement of the right to recommend other eight areas; third, theissue of other infrastructure levels, such as the contradiction between staffs and tasks, theinternal or external linkage mechanism by the prosecution is not perfect.The third part is the cause analysis. The custody necessary examination system in theearly implementation of work shows a low application rate, play a limited role, the operationresulted in overlapping functions are not standardized, lawyers involved are not enthusiastic,the suspect or defendant’s right to information have not been fully guaranteed. The reasons are:first, the prosecutor applies for custody of the need for censorship and reject the existence of concerns about the risks and responsibilities affect their motivation to carry out this work;second, the work of lawyers in the custody of necessity has not been effectively played; third,the necessity of custody examination procedure is not perfect.The fourth part is the suggestions. First, the self-changing ideas and reshape thejudiciary is imperative, the work of strengthening and improving publicity and reportage workis essential; Second, the detention review process should be perfected on base of the practicalexploration and innovation increasingly, review body may take "appropriate separation"(substitutions review) and "regroup"(specialized agencies review) mode, the scope ofapplication for the review should not be restricted, propose that the investigation stage, thetrial stage of the review was a month, two months, in order to facilitate the statutory time limit,the review should be completed within seven days, the review is primarily written review, youcan take a hearing to review the formula under special circumstances, the contents of reviewbased on the case and the basic situation of suspects or defendants, adhere to the"comprehensive review and the review focused on the combination" guiding principles, takeorally informed or a letter to inform to mobilize the enthusiasm of lawyers’ activeparticipation; Third, to improve detention necessity review system depends on the supportingmeasures, on the one hand, to solve the contradiction between staffs and tasks, we shouldenrich investigators and optimize team structure; Meanwhile, prosecutors must establish theinternal or external linkage mechanism, providing technical support and security for thenecessity of detention review.