A Structural Analysis On The Optimal Configuration Of The Right Of Custody Necessity Review

To reduce pretrial custody and fundamentally solve the problem of normalization of custody in judicial practice and various phenomena derived from the normalization of custody such as extorting confessions by torture,cross infection and misusing the criminal law to conduct arresting and kidnapping which infringe the right of personal liberty,custody necessity review system combining Chinese judicial system was established in the Criminal Procedure Law revised and issued in 2012 which used internationally-accepted practice for reference.Article 93 stipulates that investigating and prosecuting apparatus is authorized to conduct custody necessity review after the arrest;Article 616 to Article 621 in Criminal Action Regulation of People's Procuratorate in 2013 made an exploratory regulation and the review model by stages is established in the investigation and supervision department,public prosecution department and criminal execution and prosecution department in the investigating and prosecuting apparatus;In 2016,a specialized stipulation was made for the effective operation of custody necessity review system in Regulations on Handling Custody Necessity Review Case of People's Procuratorate(interim)(hereinafter referred to as Regulations)and Guiding Opinions on the Implementation of Regulations on Handling Custody Necessity Review Case of People's Procuratorate(interim)(hereinafter referred to as Guiding Opinions)issued by the Criminal Execution and Prosecution Office of Supreme People's Procuratorate.Finally,a unified review model is established in the criminal execution and prosecution department of the inspection organ.Detailed regulations are made for handling cases of custody necessity review in the procedural aspect and substantive aspect,which also lays the foundation for exploring and establishing the independent theoretical system of custody necessity review.The amendment and perfection of legislation generally reflects the demand for the power balance of pretrial custody.Providing more judicial remedy and restraining the overuse of pretrial custody has made historical progress in the developmental process of protecting human rights.The scholars have made some researches on the establishment and perfection of custody necessity review system in our country.Basically,custody necessity review is believed to belong to the judicial review of pretrial custody.It belongs to the judicial remedy procedure of pretrial custody in nature;at the same time,the general idea of the custody necessity review reform and perfection is discussed on a macro level.Giving consideration to advanced theory of western countries,researches on the system are conducted in the procedural aspects of review subject,review scope and review methods.However,compared with the position of custody necessity review in the legislation in judicial practice,the researches cover a wide range but lack of independence analysis.The first is the tendency of simply putting custody necessity review into the category of arrest necessity review on the basic theoretical level.Alteration of coercive measures review of organs handling cases in Article 94 and Article 95 in the Criminal Procedure Law are used to cover the independent value of custody necessity review system stipulated in Article 93.The second is the backward status of the judicial practice on the procedural level and substantive level under the legislative tendency of gradually reinforcing legal regulations on custody necessity review.On the procedural level,custody necessity review is usually attached to the case-handling procedure of relevant organs handling cases in the criminal procedure and is short of independent procedure to handle a case;on the substantive level,the independent theoretical system of the proof standard of custody necessity review remains to be discussed.The process of handling the cases depends much on the judgment of criminal coercive measure of the organs handling the cases.The insufficiency of independence on the procedural level and substantive level leads to the insufficiency of substantiation of custody necessity review.The third is the weakness of the judicial review nature of custody necessity review as public power balance mechanism on the procedural level and substantive level.On the substantive level,legal force of prosecuting proposal for rigid custody necessity review is limited and the compulsory force is insufficient;discretion of prosecuting proposal for flexible custody necessity review is irregular.The review standard is short of quantitative factors,which leads to the problems of substantive law application such as the insufficiency of the substantiation of judicial review.On the procedural level,self-empowerment of criminal detention security organs still exists and the scope of custody necessity review is improperly narrowed;procedural problems such as administration of the review method are caused by multiple properties of the right of prosecution and supervision as well as the wrong location of the power property of custody necessity review.Considering the above real difficulties,in-depth exploration and effective solution are needed,which ought to be combined with judicial practice.From the perspective of structural analysis and on the basis of the analysis on the custody necessity review system constructed by Regulations and Guiding Opinions,combining the conditions of handling cases of custody necessity review by the procuratorate in X city from 2015 to 2017,construction process of the optimal configuration of the right of custody necessity review and the procedural and substantive effect of Regulations and Guiding Opinions on promoting the substantiation of custody necessity review are discussed.On the basis of analyzing the deficiency of the insufficiency of judicial review property,the pathway to construct and perfect the legal supervision of custody necessity review in China is discussed.First,from the dimension of development,the construction process of the right of custody necessity review before the issue of Regulations is discussed from the aspects of tracing back establishment principle,choosing functional organization and designing duty mechanism in order to find the root for its independent construction of theoretical system.Next,independent procedural and operational direction of custody necessity review system constructed by Regulations and Guiding Opinions is explored by considering the insufficiency of the review substantiation led by the weakness in the independence of custody necessity review system and combining the data from the custody necessity review cases in the judicial practice of X city.Thirdly,independent proof standard and application system of custody necessity review system constructed by Regulations and Guiding Opinions are discussed by considering the insufficiency of the review substantiation led by the weakness in the independence of custody necessity review system and combining the detailed custody necessity review cases in the judicial practice of X city.Finally,due to the insufficiency of judicial review property in custody necessity review system,pathway to further promote the optimal configuration of the right of custody necessity review is explored.Construction and perfection of the pathway mainly contain the optimal configuration on substantive level and procedural level.On the substantive level,it mainly contains strengthening the legal force of prosecuting proposal of rigid custody necessity review case and regulating the discretion of prosecuting proposal of flexible custody necessity review case;On the procedural level,custody action after criminal detention is put into the scope of custody necessity review and review method of letting the prosecutor taking charge of the review independently is proposed on the basis of differential principle.