A Study Of Implement Of Non-custody Compulsory Measures In Light Punishment Cases

Chinese traditional thoughts and habitual thinking with the focus on the maintenance of social order and security have exerted influences on thoughts of case handling of judicial practice department.The awareness of human right is still to be strengthened.One thing is that in practice there is a comparatively low percentage of implement of non-custody compulsory measures in light punishment cases.But the custody compulsory measures account for a too high proportion,which has caused illegality,such as extended custody,illegal custody,waste of judiciary resources,etc.There are some reasons for the phenomenon.First,there is a lack of legislative authority that can be manipulated effectively from the perspective of legislation.Then,from the perspective of judiciary,human rights guarantee and the principle of innocence presumption have not been fully implemented.In the course of formation of society in China governed by law,human rights protection,formation of strict and scientific system of criminal compulsory measures and improvement of extending the implement of non-custody compulsory measures have been vital and urgent issues in the field of criminal procedure with the implement of new law of criminal procedure and the innovative action of the judicial system reform.Light punishment cases in the grassroots account for the vast majority of criminal cases.But comparing with the data of our investigation,we found that the rate of implement of non-custody compulsory measures in light punishment cases is comparatively low.That could be explained from the point of concepts,but the more important is that the thinking patterns of the presumption of guilt and the weak awareness of human rights guarantee have influenced judicial enforcement.For another,the legal provision of the implement of criminal compulsory measures is too broad,and the external factors have effects on the implement of non-custody compulsory measures,both of which are not beneficial to the judicial manipulation.The relatively low rate of the implement of non-custody compulsory measures not only causes the illegality of judicial authority,but also can not guarantee human rights.And the implements of custody compulsory measures in light punishment violated the internationally-recognized proportional principles,and contradicted the judicial policy of tempering justice with mercy.Some countries defined strictly the implement of non-custody compulsory measures in light punishment cases.The bail system in Anglo-American Law System countries takes bail rights for legal rights,which is applied in a wide range.In the Continental Law system(e.g.French and Germany),there are differentiated provisions on the implement of compulsory measures in light punishment cases and heavy punishment cases,and custody compulsory measures are not applicable to light punishment cases.On the basis of the foreign experience,the judicial authority should fully take our national conditions into consideration,transform ideas and the model of handling cases and extend the implement of non-custody compulsory measures in light punishment cases in order to enhance legal provisions and case-handling mechanisms.Therefore,we suggest to define the special situations of the implement of light punishment cases to strengthen investigators,manipulation of judicial application;to perfect non-custody measures to shorten the term of guaranteed pending trial;to reform the guarantee form of pending trial;to rebuild the case handling assessment mechanism and establish the investigators' risk liability exemption system;strengthen further the transformation of enforcement thoughts and so on.