Reflection And Improvement Of The Pre-trial Custody System

This study is entitled "reflection and improvement of the pre-trial custody system", focusing on analyzing existing problems in this system in our country and attempting to put forward the corresponding improving measures. Different from pre-trial custody system of other countries, the system in china is not an independent one, including detention and arrest, which is ascribed to that both are taken as an enforcement measures depriving of personal freedom of a citizen prior to the final judgment made by court. The most prominent problem in the pre-trial custody system of China is the long detention time, yet it is only the apparent phenomenon. The key factor is the defect of pre-trial custody system itself. The main content of this study is as follows.Chapter 1 focused on the corresponding theory research of pre-trial custody system. The system in our country refers to an enforcement measures depriving of personal freedom of criminal suspect and defendant before the final judgment made by court, including the measurement of both detention and arrest. As one part of the system of compulsory measures, it has the potentials to safeguard lawful right and prevent the recurrence of social risk. Based on the legal basis of utilitarianism and entity real socialism, the pre-trial custody system should be established. Meanwhile, the pre-trial custody system has the characteristics of infringement of civil right and deprivation of personal liberty as well, possessing the another side of violation of the presumption of innocence and civil rights. Based on the legal basis of power balance theory and the presumption of innocence, the pre-trial custody system should also be established. A scientific and impeccable pre-trial custody system appears very important to effective guarantee for litigation and the protection of human rights.Chapter 2 focused on the investigation of the pre-trial custody system of Britain, the United States, France and Japan, introducing the legislation of several representative countries of Anglo-American law system and continental law system. The results show that even though provisions of legislation are not identical, the legislative guiding ideology was in agreement basically. Both the public security organs and procuratorial organs in the Countries of Anglo-American law system, as their administrative department, have no right to make decisions concerning something referring to the personal freedom of a citizen, which embodies the guarantee of human rights. France, as a representative continental lagal system one, its procuratorate serves as a legal supervision organization and the application of the system of detention abide by the principle of double examination. The procuratorial organ has the right to refuse to apply the measures of detention, but has no right to make the decision of detention. The detention system of Japan can be divided into the detention prior to prosecution and the detention after prosecution, the detention period in two cases was different in relative legal provisions.Chapter 3 focused on the introduction of the existing problem in our pretrial custody system. Even though detention and arrest belongs to pre-trial custody system, their existence problems were not identical. Therefore, to solve existence problem of pretrial custody system in our country, it is indispensable that the two system was were distinguished into two independent part to investigate respective existing problems and give constructive measures.In Chapter 4, we attempt to propose own opinions. We do not recommend copying directly the provision of western countries to establish the independent custody system in our country. It is wise and advisable for us to stand on the actual situation of the laws of China, learn from foreign arrest system and the stipulation of the system of outside independent custody, finally improve our country's system of detention and arrest respectively.