On The Perfection Of The System Of Examining The Necessity Of Detention In China

When China amended the Criminal Procedure Law in 2012,it added a censorship review system,but there is only one relevant legal norm,which is not conducive to practical operation.In order to make up for this deficiency,the "People's Procuratorate Criminal Procedure Rules(Trial)" uses six provisions to stipulate the subject,method and conditions of custody necessity review,and provide guidance for judicial practice.After several years of judicial practice,the Supreme People's Procuratorate has also formulated the "Provisions of the People's Procuratorate for the Examination of the Necessity of Custody(Trial)" and the "Guiding Opinions on Implementing the Provisions of the People's Procuratorate for the Examination of the Necessity of Custody(Trial)".These two documents are closely related to the actual needs of the case,and further refine and expand the censorship necessity review mechanism to make the system more operational.In practice,the procuratorate handles a certain number of cases of custody necessity review every year,and safeguards the legitimate rights and interests of criminal suspects and defendants.However,there are still some shortcomings in the censorship necessity review system in China.This paper analyzes the necessity of custody of the L city procuratorial system in Anhui Province,and finds that the procuratorial organ's review of the necessity of custody is not fully carried out,and the expected purpose of effectively reducing the custody rate has not been achieved.In fact,there are similar phenomena across the country.The effectiveness of the custody necessity review system is limited,and the reasons for its institutional defects cannot be ignored.The shortcomings of the system mainly include: the scope of the cases examined is relatively limited;the certification mechanism needs to be improved;the procuratorial organ's review suggestion is insufficiently rigid;the non-custodial alternative measures are imperfect;the suspects and defendants lack remedies,etc.In order to improve the censorship necessity review system,China should proceed from the following aspects.First,expand the scope of pending cases so that the review of the necessity of custody can benefit more criminal suspects and defendants;Second,improve the certification mechanism for the review of the necessity of custody,in terms of certification objects,certification standards and certification responsibilities.Make clear and reasonable legal provisions;Third,change the status quo that the suggestions made by the procuratorial organs lack rigidity and give them the legal binding and enforcement power of the review decision;Fourth,improve the non-custodial alternative measures to slow down The public security judiciary's resistance to non-custodial measures and create conditions for the operation of the custody necessity review system;Fifth,improve the compulsory necessity review and remedy mechanism,and guarantee the right of dissent,appeal and relief of criminal suspects,defendants and their defenders.