Research On The Time Limits For Pending Custody

That the specific clean-up activity aiming at overtime and long-term pending custody,which was taken by the related department in China,plays a degree of containment in the time issue of pending custody in 2013.However,the essential reason for this issue is the deficiency of controlling mechanism of the time limits for pending custody in current legal system.For instance,the proportion principle and innocence presumption principle are not fully implemented;also,there is no basic procedure rights for detainees;pending custody procedures did not separated from detention and arrest procedures;and the judicial review system for pending custody are not wellestablished.The application of substitute measures including the guaranteed pending trial and surveillance of residence works less well than expected,the types of substitute measures are insufficient.Although the review of the pending custody necessity and the establish of exclusionary rules of illegally obtained evidence have consolidated the restriction on the illegal time issue of pending custody,the effective relief system is still weak,as well as the relief pathway are not specific enough.Furthermore,the launch of The People?s Republic of China Supervision Law of 2018 may contribute to the emerging of new problems in the time limits for pending custody in operation.The issue of the time limits for pending custody in criminal procedures have impact on the realization of civil constitutional rights and procedural justice.These two theories as well as the proportion principle and innocence presumption principle should lay a theoretical basis for the time limits controlling of the pending custody.From the perspective of litigation guarantee,the time limits controlling of the pending custody will benefit the criminal prosecution activity,also be known as “possible burden” for the defendants;From the perspective of human rights protection,excessive custody and extended custody breach the legal bound of the pending custody,which becomes “impossible burden” for the defendants in spite of it achieves the goal of controlling crimes.In the meantime,this illegal behavior violates the proportion principle and innocence presumption principle and undermines the procedural justice,stands opposite to the constitutionalism theory.Therefore,constitutionalism theory,procedure justice theory,the proportion principle and innocence presumption principle can provide this time issue with powerful support.Countries like American,England,France,Germany as well as Japan all have accumulated a great deal of advanced and effective experiences in controlling the time limits for pending custody.These experiences generally include constitutionalizing defendants' basic civil rights,setting up an independent pending custody system,establishing a judicial review system,enriching the substitute measures and providing a variety of effective remedies.This paper considers two main threads that should be grasped on the whole to improve the time issues in the pending custody in China.The first one is penetrating through the constitution,for example,studying the constitutional experience from western countries,enlarging the scope of constitutional rights of the defendant,guaranteeing detainees' right embracing the rapid trial rights and bail rights not to be wrongfully violated,establishing the awareness of preserving the basic procedure right of the detainees and penetrating it into the system of constitutionalism.The second is breaking through from the criminal procedure law,specifically,combined with the actual situation in China to improve the related issues of time limits for pending custody.