Study On The Necessity Of The Examination System Of Detention

In judicatory practice, extended detention and disguised detention have been theserious problems for a long time. However, there is no regulation about theexamination of the necessity of the detention after arrest. Therefore the article93ofthe Law of Criminal Procedure:After the suspects, defendants were arrested, thePeople’s Procuratorate still be the need for a review of detention. Unwanted custodyshould be released or recommend changes to coercive measures. The relevantauthorities should deal with cases notified within10days after the People’sProcuratorate. That is revised in2012establishes the censorship of detentionnecessity in legal, which gives the supervision power about the necessity of thedetention after arrest to the procuratorial organs and limits the application of custodymeasures.The establishment of this system makes the the Law of Criminal Procedure,as a part of the constitution, more in line with the international standards on the aspectof respect and protection of human rights. But the new system is difficult to beapplied in practice and guide the real case. Thus this thesis will study the censorshipof detention necessity after arrest in five parts.The first part will be the overview about the system of detention necessity.Firstly it will make a definition about the system of detention necessity. Then it willstate the necessity about the establishment of system of the censorship of detentionnecessity.The second part will be some theoretical basis. It will mainly state the principleof presumption of innocence; the thought of respecting and protecting the humanrights; the principle of power restriction; the thought of saving the litigation costs andpursuing the efficiency of lawsuit.The third part will discuss the problems existing in the system of the censorshipof detention necessity. Firstly it will be the legislation defect including theambiguities about the subject of the system of the censorship of detention necessityand the scope, the content, the period,and the way of a case. Then it will be the difficulties in the judicial practice about the censorship of detention necessity. Forexample, the recommendations of detention necessity lack of rigidity; The traditionalconcepts in some judicial officers’ mind; The detention rate always keep high level,which restricts the application of the system of the censorship of detention necessityand influences the change from censorship to compulsory measures for procuratorialorgans.The fourth part will be the comparative analysis about the system of detention inforeign countries. In the civil law system, the thesis will take the German and Francefor instance; while in the common law system, it will choose the United States andthe United Kingdom as examples. The thesis will summarize some advanced systemsafter analyzing for our country to use.The fifth part will be some suggestions about the subject,the scope, the content,the period, the way and the protection of the system of the censorship of detentionnecessity. At last, it will put forward some improvements about the supportingmeasures of the system of the censorship of detention necessity. The author hope thatthe thesis can improve the operability in guiding practice of the the system of thecensorship of detention necessity.