The Research On Specified Residence Under Surveillance

In order to respond to the realistic needs and reduce the detention rate, the revised “Criminal Procedure Law” increases specified residence under surveillance and sets up special situation of application, special procedure of application and special legal consequence for it, relative to ordinary fixed residence under surveillance, in 2012. The particularity of specified residence under surveillance cannot deny that it has the commonness of residential surveillance. Through analysing the relevant legal provisions and comparing with the relevant systems, we can find that specified residence under surveillance is the special type of residential surveillance and it is a kind of non-custodial coercive measures which is substitute for arrest in essence. The standard of determining whether a legal system should be retained is whether the system has the legitimacy of existence, rather than whether there are problems or how many problems. Specified residence under surveillance meets the requirements of the theory of fundamental rights intervention, the theory of due process and the theory of human rights protection, it is a kind of coercive measures which is really needed by the criminal procedure in our country. We should not rudely abolish specified residence under surveillance, just because it has some problems. Specified residence under surveillance has many problems, including the indeterminacy of applicable situation which is caused by the fuzziness of some related notions and the imperfection of applicable procedure which is caused by the indeterminate and undetailed legislation and the unstandard behavior of law enforcement. If these problems cannot be solved effectively, they will bring great harm to the human rights of criminal suspects and defendants. Facing these problems,we need to take an objective view, rational analysis, in order to find corresponding countermeasures. Making the applicable situation clear by defining clearly the concepts of ‘Fixed residence', ‘Three kinds of crimes' and ‘Impeding the investigation' is the premise of standardizing the application of specified residence under surveillance. To establish a set of scientific and complete procedure of application for specified residence under surveillance, through applying judicial decision procedure, standardizing execution procedure, strengthening supervision procedure and establishing relief procedure, is the key of standardizing the application of specified residence under surveillance to realize the unity of the fightagainst crimes and the protection of human rights.