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Research Into Disputes During Implementation Of The Review System Of The Necessity Of Custody After Arrest

Posted on:2018-11-28Degree:MasterType:Thesis
Country:ChinaCandidate:W C YangFull Text:PDF
GTID:2346330533457368Subject:Law
Abstract/Summary:PDF Full Text Request
It is explicitly stipulated in our State's Constitutional Law and Criminal Procedure Law that Human Rights is respected and protected by the State.Yet,for a long time,during the practice of our Criminal Justice,Custody after Arrest is in high frequency and has become a commonly-seen phenomenon.There has been a nationwide high ratio of being arrested,leading to a waste of judicial resources,causing serious damage to basic rights of the suspect and the defendant.Worse is that disputes and introspection keep occurring between the theoretical circles and judicial practice circles.The essence of RSNCA originally aims to limit the application of custody,helping to change the current situation of high detention rate in China's judicial practice,showing the important embodiment of the concept of human rights protection.But,due to imperfect legislation,lack of relevant supporting measure,the lag of current judicial personnel ideas,the lag of law enforcement concepts as well as many other reasons,disputable issues exposed in RSNCA.Failure to arrive at a consensus over the issues has much influenced the function of RSNCA.Though these disputes have been on the table in theoretical circles and judicial practice circles,but still lack of comprehensive and systematic research into themselves.Furthermore,there is no in-depth research and demonstration ever conducted into the root of the dispute,the crux of the problem.This paper,issue-oriented,starts from judicial practice,sorts out some key issues existing during implementation of RSNCA and does in-depth research.On a basis of judicial practice,the research takes three logical steps which are Raise Question,Analyze Question and Solve Problem.With the disputes occurring during the implementation of the system as a starting point,based on stipulations for controversial focus by current laws and judicial interpretation,an in-depth research into disputes have been conducted and hereby put forward some solution suggestions to disputes,for the reference of the legislative and judicial departments.This paper consists of 5 chapters.Chapter 1 Overview,we sort out the development venation of RSNCA,analyze the legislative evolution of RSNCA,summarize the controversial issues existing during the implementation of RSNCA,point out what types of the controversial issues are in RSNCA,interms of Review Subject,Review Mode,Proof of Social Danger and Review Effect.Chapter 2 Review Subject,first,we analyze the pros and cons of the Review Subject,with a preliminary conclusion of the right Review Subject acted by corresponding procuratorial supervision departments.Finally,we restructure the Review Subject,propose a setup of a professional Litigation Supervision Department in charge of the Necessity of Custody after Arrest,and discuss the feasibility of the proposal.Chapter 3 Review Mode,first,we analyze the pros and cons of the Mode of Administration Examination and Approval(MAEA)and Mode of Judicial Review.Based on the analysis of the current Mode of Review in China,we can draw the conclusion that the current Mode of Review belongs to MAEA.Finally we point out that the model has its value orientation,but should carry out judicial reform to eliminate the drawbacks of administrative approval mode,for which the specific solution path includes: Adhere to the objective and neutral position of the prosecutor,improve the mechanism to listen to opinions,improve the design of the public examination system,carefully introduce the mode of public hearing review.Chapter 4 Proof of Social Danger,first of all,we define the concept of social danger,and lay the foundation for the proof of social danger.Secondly,discuss the burden of proof,the standard of proof and the path of proof.By sorting out the theoretical circles and judicial practice circles on the basic viewpoints of each topic,expound the basic position of the paper,demonstrate the legitimacy of the standpoint,and put forward the solution to the judicial practice.Chapter 5 Review Effect,First,the nature of RSNCA requires to be defined,and analysis of dispute is also required,in terms of function of litigation and litigation supervision.Then,we put forward the problem of how to view the rigid validity of Review,and refute the point of less rigidness of Review Effect.Further,we enhance of the way of the rigid validity of Review.Finally,we restructure the Review Effect,propose that the procuratorial organ should be given the right to decide the custody,and the feasibility of the proposal is demonstrated.Conclusion,in a summary there are controversial issues existing in RSNCA,of which main reason is lack of supporting measures of RSNCA.Based on this,we propose a way out for a sound RSNCA,which consists of updating the concept of law enforcement,establishing a scientific assessment and incentive mechanism,establishing a sound alternative to custody,as well as the establishment of a sound system of custody relief.
Keywords/Search Tags:Review system of the necessity of custody after arrest(RSNCA), review subject, review mode, social danger, review effe
PDF Full Text Request
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