On The Perfection Of China’s Pending Custody System

The pending custody is an important part of the construction of a complete criminal procedure theory and practice system.At present,there is no detailed stipulation on its concept in the criminal procedure law of our country.In judicial practice,it refers to a series of measures taken by the authorities to deprive and restrict the personal freedom of the suspects and defendants before the people’s court finally convicts them.It is pre-trial detention.In recent years,the exposure of a large number of unresolved cases of prolonged detention and unresolved arbitrary detention has triggered a heated debate on the system,and even the issue of safeguarding the personal rights of detainees has triggered a debate on the protection of human rights in criminal proceedings.Due to the lack of detailed provisions on the applicable conditions,executing subjects,executing places and relief ways of pending detention,the operability of the existing provisions is not strong.In judicial practice,there are still excessive application of pending detention,inadequate review of the necessity of detention,the independence of the subject and place of detention,and the lack of attention to the legitimate rights of detainees.And a series of problems such as maintenance,vacancy of available alternative measures,etc.By studying and comparing the relevant provisions of the pending detention system in foreign countries,we can find that most of the major western countries under the rule of law have established a systematic system to guarantee the basic human rights of criminal suspects and defendants.By learning from the useful experience of different foreign countries,we can re-orientate and regulate the pending detention system,identify shortcomings and carry out comprehensive reform.If we can take this opportunity to promote the real independence and neutrality of criminal justice,and promote the value orientation of judicial practice to change to the direction of respect and protection of human rights,it is worthwhile to try.The first chapter of this article starts with the basic theory of detention without adjudication,and elaborates on its legal position and function,subject and duration,and relief methods in China.Then the second chapter focuses on investigating the relevant systems of foreign countries with different legal systems.Through a detailed study,analysis and comparison of the relevant provisions of the pending detention system in the United Kingdom,the United States,Japan,Germany and France,we try to summarize the reform measures that we can learn from by analyzing the system of these representative countries.Chapter three starts with exploring the current situation of our country’s pending detention,and further analyses and summarizes the defects and their root causes in the construction of our country’s pending detention system.It traces the root of the problems from the basic ideas,institutional loopholes and other dimensions.Finally,in the fourth chapter,we try to explore the legal principles and specific measures to improve the pending detention system in China,and think about the newly established detention measures in the Supervision Law.Generally speaking,the purpose of this article is to safeguard the legitimate rights and interests of the detainees without trial as a starting point,and strive to find a new balance in the realization of thenational penalty power,the protection of the legitimate rights and interests of all participants in the proceedings and the construction of a perfect system of pending detention.