Research On Detention Necessity Censorship In China

This article stars with the detention necessity censorship that is established due to the amendment of Chinese criminal procedure law. Firstly, it introduced the realistic condition of our country’s arrest and detention, analyzed the characteristics of coercive measures in the unification of arrest and detention. It also explained the concept of detention, which is a persistent status of imprisoning the suspect or defendant in located place and limiting or depriving one’s personal freedom rather than the legal consequences that the suspect have to undertake after under arresting. Meanwhile, this article proposed the dual character of detention measure and pointed out that it is necessary to adopt restriction to the application of detention in order to realize the target of laying equal stress on punishing crime as well as protecting human rights. Secondly, it demonstrated the theoretical foundation of detention necessity censorship from four aspects such as Guarantee of Human Rights, Presumption of Innocence, Power Constraint Principle as well as Proportionality. Then, it illustrated urgent realistic requirement for detention necessity censorship ranges from detention that at high rate, detention houses that running at full capacity and relief construction of unsettled detention that needs to gear to international standards. This article specially introduced the practical operation of detention necessity censorship, which involves procedural initial subjects, investigative scope and content, flow and method as well as effect.In the perspective of status, there are still some problems existing in Chinese detention necessity censorship: Firstly, judicial officers are reluctant to apply detention necessity censorship and the traditional thinking mode of detention case hearing ubiquitous. The undertaker feels it very difficult when investigating a case with complex objects and has dependence on that the investigation can be applied and started by relevant parties. Secondly, lacking a relief procedure that guarantee the legitimately exercise of party’s right. In juridical practice, some evidences about the suspect or defendant may not be inquired or offered completely, which will be hard to protect one’s own right in this circumstance, makes citizen in passive state during the process of detention necessity censorship and lacks corresponding relief safeguard procedure to protect their own legitimate rights and interests. Thirdly, the standards of detention necessity censorship are not detail. They all belong to elastic clauses and lack uniform standards. The investigation object does not differ special and general with conflicting investigating entity responsibility. Fourthly, the corresponding safeguard mechanism has not been modified synchronously, which includes imperfect non-custodial coercive measures, lack of scientific performance appraisal, etc. Fifthly, the inspection subject of investigation results is not clear. The amended criminal litigation law endowed the right of detention necessity censorship to procuratorial organ to extend its function of protecting human rights and punishing crimes. This system lacks an important link—supervising organ, which excluded People’s Court out of detention necessity censorship before investigation and made the censorship lacks neutrality it should has. Thus, this system lost impartiality and authority.Based on the questions above, the author proposed suggestions for establishing perfect system of detention necessity censorship:(1) Renew concept of rule by law, intensify protection of human rights consciousness, convert the old-fashioned idea of procuratorial organ official and improve civic awareness of maintaining own rights.(2) Set review agency, guarantee party’s relief procedure mechanism, endow censor right of detention necessity to adjudication organ and review detention necessity periodically.(3) Introduce hearing process, improve party’s proportion of participating in decision-making, clear hearing scope and ensure applicability of hearing conclusion.(4) Complete matched safeguard mechanism, further reinforce the establishment of non-custodial measures, perfect implementation system of pending as well as living at home under surveillance, give play to community’s advantages of correcting supervision and establish scientific evaluation system.(5) Improve the adopt rigidity of investigation suggestion, promote the positive acceptation of investigation results as suggestions from formulating punitive measures to establishing contact mechanism by communicating with various parties.