A Study On Issues Of Residential Surveillance In China

As one of the five criminal compulsory measures in Chinese criminal procedure system,residential surveillance is stipulated in Criminal Procedure Law of the People's Republic of China(hereinafter referred to as Criminal Procedure Law)and other supporting laws and regulations and it belongs to noncustodial compulsory measure;as the intermediate link of compulsory measure system,it is used to link bench warrant service,bail pending trial and detention,arrest and it occupies an important position in criminal compulsory measure system;it not only improves and supplements the implementation of noncustodial compulsory measures like bail pending trial,but also replaces and prevents the abuse of custodial compulsory measures that restrict personal freedom,such as arrest to some extent;it can ensure the smooth progressing of criminal procedures while guaranteeing the legal interests of litigants;it is a moderate and flexible criminal compulsory measure with multiple guarantees and it is equipped with the unique system value in improving compulsory measure system and promoting law enforcement;the legislative spirit of protecting human rights in Criminal Procedure Law is fully reflected in residential surveillance system.Residential surveillance system is a criminal compulsory measure with Chinese characteristics and it was born in the juridical practice during new democratic revolution period;after the founding of the People's Republic of China,residential surveillance system first appeared in Regulations on Arrest and Detention in 1954 and in 1979,it was written in Criminal Procedure Law as a criminal compulsory measure formally;in 1996,it was developed with times while revising Criminal Procedure Law and finally in 2012,it was further improved and tended to be mature in the Amendment to Criminal Procedure Law;the development course of residential surveillance system is synchronous with social development and progress of rule of law in China and it has reflected the integral characteristics of criminal compulsory measures under different historical backgrounds and in different historical periods and played an important role.As a noncustodial criminal compulsory measure that restricts personal freedom to some extent,residential surveillance has similarities with some systems in common law system countries and typical civil law countries in terms of nature and legal provisions;hence,after introducing and understanding the contents of judicial control system in criminal procedure of France,residential arrest system in criminal procedure of Italy,deferred execution system of arrest warrant in criminal procedure of Germany,home confinement and residential surveillance system in criminal procedure of Russia,bail hotel system in criminal procedure of Britain and release system with restrictive conditions in criminal procedure of America,we can find that the practice of considering residential surveillance as a criminal compulsory measure in China has some characteristics and it is a reflection of system creativity in the domain of criminal procedure in China;the progressive elaboration of residential surveillance system is basically consistent with the development direction of international rule of law,but it still has some defects in right guarantee,judicial supervision and execution mode and needs to learn from similar systems abroad.Although residential surveillance system is developing and progressing continuously and has been promoted greatly,there are still some defects and deficiencies in the existing legal provisions,such as undefined legal concepts and provisions,imperfect execution monitoring regulations and lack of right relief measures in existing regulations and many problems exist in the real execution processes.Even after the revision of Criminal Procedure Law,the using rate of residential surveillance was not enhanced in juridical practice and the phenomenon of using residential surveillance improperly by capitalizing on legal loopholes existed;meanwhile,the high implementation costs restricted the implementation of residential surveillance and the front-line law executors were plagued by these problems.In the theoretical cycle of law science and social opinion,the development of this system has always been accompanied by disputes and doubts.In this paper,the author,a front-line juridical practitioner will analyze the implementation status of residential surveillance system and summarize the existing problems of residential surveillance system through combining with the theoretical research results and further raise the presumptions for improving current residential surveillance system from specifying application conditions of residential surveillance,adding advanced review process of residential surveillance,strengthening the supervision on implementation link of residential surveillance,improving the implementation ways and means of residential surveillance and bringing residential surveillance at a designated residence into state compensation so as to better realize the legislative goal of protecting human rights in residential surveillance system.