The Research On The Improvement Of The System Of Reviewing The Necessity Of Custody In China

Pretrial detention is widely used and present a certain tendency to "punish" in our country criminal justice practice for a long time.In order to regulate the use of Pretrial detention,and guarantee the basic human rights of prisoner,The new crimina law added the Article 94,“the system of Reviewing the necessity of custody”,which states that : after the arrestment of criminal suspect or defendant,The People's Procuratorate still needs to review the necessity of the continuousdetention.The establishment of this system in our country has its inevitability.But as an innovation of currentcustody system,it also has some internal defects and legislative defects.Therefore,it is necessary to further improve its relevant regulations.For this purpose,this thesis do the research on the system of Reviewing the necessity of custody follow such idea : analysis theory firstly,dissecting problems secondly,putting forward several soundproposals finally.The system of Reviewing the necessity of custody is not related to the review of the necessary or legitimacy of the decision or approval of arrest at the beginning time.It's core meaning is that The People's Procuratorate should focuses on reviewing the necessity of the continuousdetention of criminal suspect or defendant who were arrested at the present time.Differing from judicial review mechanism,our system embodies the legal supervision power of The People's Procuratorate in essence.the system of Reviewing the necessity of custody contains jurisprudence basis of limiting custody,such as respect and guaranteehuman rights,presumption of innocence,principle of proportionality,due process.But the current law on this new system is not comprehensive,and at the same time it can not satisfy the complicated criminal cases.Because of that,it is difficult to operate.Therefore,Criminal procedure law or relevant judicial interpretation should learn from experiences abroad to make this new system's entity terms and procedure terms more clear on the basis of our tradition of criminal justice practice.Specifically,the scope of review should be limited to misdemeanor and light punishment criminal.The People's Procuratorate review the case on the basis of the written materials and evidences,but taking review procedure which is holding by The People's Procuratorate,including conducting bodies,prisoner and lawyer when necessary.The People's Procuratorate should starts this system proactively every couple of month.Perfect necessary conditions,narrow discretion.Empower criminal suspect or defendant,legal representatives,defenders and near relatives reconsideration power and rechecking rights,and design relief process for The People's Procuratorate during the proposal is rejected.At last,for the sake of making the system operate more effectively,some supporting method should be set up,for example,bring Reviewing the necessity of custody into performance appraisal and give a higher score to police officers;perfect alternative measures of detention,residential surveillance and bail which is our primary focus;set up information network platform for The People's Procuratorate's detection watchdog department,reviewing prosecution department and supervision department.