A Study On Censorship For Necessity Of Detention In China

In the compulsory measure system of criminal procedure in China, arrest is the most strict compulsory measure, thus being concerned by society extremely. At present, the detention rate after arrest is always staying at a high level and the long duration of pretrial custody is denounced, which is closely related with the judicial environment, judicial concept and judicial resource. In many cases, the arrest conditions may change after the criminal suspect is arrested by the public security organ and at this time, the basis for detaining the criminal suspect is lost or there is no need to detain him. Then, the detainee should be protected by the censorship for necessity of detention and the original compulsory measures scheduled by judiciary authorities should be changed through examination. In 2012, the censorship for necessity of detention was established on the legislative level in the newly revised Criminal Procedure Law; the core of this system is the necessity for procuratorial organs to examine the custody of the arrested criminal suspect so as to determine whether to continue detaining. After all, such system is a new system and is lack of operability, there are still imperfections although its judicial interpretations and normative documents are beneficial complements for the legislative principles. It has become an urgent problem to specify the censorship for necessity of detention more specifically and give play to this system in juridical practice. In this thesis, the study on censorship for necessity of detention is conducted from four aspects:The first part is the explanation of the basic theories of this system. Firstly, the concept for the examination of necessity of detention is introduced with the research perspective of pretrial custody; secondly, the nature of this system is analyzed briefly; finally, the judicial and social functions of this system are discussed.The second part is the analysis on the legislative layer of this system. It is analyzed from the legislative background and current situation of legislation to indicate that the system is still rough on the legislative layer and can not guide juridical practice successfully; finally, the improvements and limitations of the legislation are elucidated.The third part is the analysis on the implementation level of this system. The predicament and its reasons are analyzed to indicate the deep causes for the failure of implementation, such as lagged judicial concept and imperfect alternative measures of custody, which affects the popularization and application of the system.The fourth part is the suggestions and conceptions for the reform of the system. Firstly, the principles for the system are interpreted; secondly, the ways for improving the examination procedure are put forward; finally, it is posed that the supporting mechanism should be practicable when improving the system.