Empirical Study On Custody Necessity Censorship

Personal freedom is the foundation to protect other rights of citizens. In China,“high custody rate”?“undecided after prolonged imprison”?“extended detention”have become ills in criminal proceedings. Under the impact of "International Covenant on Civil and Political Rights," the main foreign legal countries have set up custody review system one after another. In 2012,the new Criminal Procedure Law put the system of review on necessity of custody into the law for the first time, which is a great progress of China's rule of law. And it provides relief channels for the detainees before the trial. Then Supreme People's Procuratorate refined the system in the People's Procuratorate Rules of Criminal Procedure(Trial), which makes this system more workable. However, after the investigation on the implementation of necessity detention review about the entire Dali Prefecture, the author found that there are still a lot of institutional and practical problems in the system. This article has been divided into four parts to research the problems basing on the data about necessity detention review of Dali Prefecture, following the thinking of finding problems, solving problems.The first part analyzes the practice dilemma of this system, which is mainly shown in the following four aspects. First, it is difficult to play its proper function of the system because of very limited number of cases censored. Second, the pattern of “by stage, by sector” is not reasonable enough. Third, the review process is lack of fairness. Last,the decision made after the review process lacks of proper legal validity.The second part is the analysis of the reason causing the problems in the review system of necessity of custody, mainly including four reasons: The concept of “necessity review” of investigators has not formed yet. Legislative provisions are imperfect. The functions of prosecution also are the factors. The staff mainly responsible for the custody of necessity review is inadequate.The third part analyzes the necessity to perfect the system of review on necessity of custody. The first is it is helpful to reduce the practice of extended detention, illegal detention phenomenon. Second, it highlights the protection of fundamental human rights of detainees. Third, it is benefit to curb the abuse of public power. Fourth it reflects the basic spirit of procedural justice.The fourth part presents specific initiatives to improve review on custody censorship. Firstly, change the concept of investigators. Secondly, rationalize the range of cases in custody censorship. Thirdly, design the applicable procedures of the review of custody necessity more scientifically. Then clear the legal effect which of the decision made in procedure of review on custody. Last, establish relevant supporting measures. All in all, any system can not be perfect. According to the study, the author try to propose measures to improve the system, which is to be more in line with our country's judicial practice, thus to realize its goal of value better.