Study On The System Of Detention Necessity Review

Detention necessity review refers to that after the criminal suspect or the defendantis arrest, the people’s procuratorate in accordance with the functions and powersactively or on the application passively to review the need to continue to detain, andfor those who do not need to continue to detain, should advice relevant authorities torelease or change system of compulsory measures. Detention necessity review hasparticular subject, specific object, proposed conclusion legal characteristics and theinternal characteristics of unity of protecting human rights and punishing crime, entityjustice and procedure justice, criminal justice and the social management. Thepeople’s procuratorate is the legal supervision organ in our country, it also determinesthe essence of detention necessity review as the duty of the people’s procuratoratesfrom criminal procedure law, is a kind of legal supervision, and is different from otherduties of lawsuit such as correcting illegal arrest. As a system, detention necessityreview not only has legal functions of the relief, evaluation and prediction, but alsohas social functions of protecting human rights, resolving conflicts and promoting thesupervision. Detention necessity review in the revised criminal procedure law in2012established has its realistic background and legislative basis, from the realisticbackground, high rate of detention in criminal action,"arrest is investigation","thecriminal suspect or the defendant is in detention from start to finish", the long-termdetention phenomenon are urgently needed to solve and improve; On the other hand,the presumption of innocence principle, proportion principle and power balanceprinciple are the legislative theoretical basis of detention necessity review. As a newkind of establishment of the legal system, detention necessity review not onlyembodies the progress of the rule of law, has enriched the content of legal supervision,but also has encountered many problems in practice, mainly such as incompletestructure, uncertain content and the ambiguous language in the law; lack ofinformation sharing, evaluation of reasoning, supporting mechanism and alternativemeasures on the matching mechanism; traditional judicial ideas such as "presumptionof guilt","arrest for confession" from the judicial personnel and too much emphasis on the efficiency of lawsuit, highlight the appraisal on the utilitarian way of lawenforcement. All these problems affect the practical application and effect ofdetention necessity review. In order to protect the achievements of the new legislation,implement the legislative spirit of detention necessity review, more protect thelegitimate rights and interests of criminal suspects or defendants, we can make effortsfrom the following aspects: First, elaborate the legal norms about detention necessityreview, determine investigation supervision departments as the responsible subject,clear that review is throughout the criminal proceedings and is applicable to allcriminal cases, determine the review contents including legal contents such as thecase facts, social risk, the personal status and discretionary contents such as theperformance in detention, social impact, clear time limit for examination and starting,interval and transferred at the same time; Second, specificate the start, theimplementation, the safeguard and the relief of detention necessity review; Third,improve relevant mechanisms in order to ensure the effect of detention necessityreview.