Research On The Justification Of The Procedure Of Examination And Approval Of The Detention From The Perspective Of Freibeweis

In China’s judicial context, detention is a criminal coercive measure which will deprive the personal liberty of the criminal suspect for an extended period, as well as one of the most widely used measures in the criminal judicial practice. Based on the stringency of the measure and the universality of the application, detention system always locates in the key focus in the field of criminal proceedings. Experienced several major law revisions and modifications in China, as far as the detention conditions are concerned, there is little difference between Chinese law and major developed countries’ laws, which both reflect the prudent attitude of the deprivation of the personal liberty. Nevertheless, the practical application of the measure in China is much worse. Detention, which becomes the most common measure against the criminal suspect, acts as the backbone of the whole system of the criminal coercive measures. The detention system must be justified immediately.The Procedure of examination and approval of the detention, which play a very important role in the arrest system, is notoriously considered to be insecure. It is widely accepted that the procedure is so defective that it cannot complete its due mission of preventing the erroneous and abusive arrest. Even though to some extent, the procedure’s judicial attribution had been reinforced after the 2012 amendment, the imperfection still stays where it was, and will continues to turn negative. Under such circumstances, there are plenty of tit-for-tat perfecting schemes aimed at the procedure in theoretical and practical circles, so how to make a choice? The thesis will provide a new perspective called ‘freibeweis‘, try to explore a practical and efficient reform path of the procedure of examination and approval of the detention. The thesis is divided into the following four chapters:The first chapter discusses the basic problem of the procedure of examination and approval of the detention. Started from the research on the concepts of ‘detention’ and ‘the procedure of examination and approval of the detention’ under China’s judicial context, combined with the functions of the examination and approval of the detention, this chapter will try to explore the basic requirements of the ‘due process of law’, grab the normal justification requirements of the procedure of examination and approval of the detention.The second chapter discusses the justified proving mechanism of the procedure of examination and approval of the detention. The justified procedure based on the justified proof of detention, which objects of proof are specific. This chapter will analyze the nature of the proof of detention, research on the normative method of proof, explore the justification of the burden of proof, the standard of proof, the competency of the evidence, and the investigation method of proof, in order to construct the justified procedure of examination and approval of the detention.The third chapter discusses the system and practice of the procedure of examination and approval of the detention in China. Based on the introduction to the legal provisions before and after the 2012 amendment, this chapter will study the justification of the censorship body and the writing method, then try to grab the lack of justification of the procedure.The fourth chapter explores the improvement on the procedure of examination and approval of the detention in China. The improvement should always be together with the application of the theory of freibeweis. From this point of view, this chapter will emphasize how to improve the mechanism of opinion listening, how to establish the operable arrest hearing, how to realize the combination of the writing examination and the hearing examination, in order to provide a proposal of the justification of the procedure of examination and approval of the detention in China.