Research On The Remedy System Of Pending Detention

The remedy of pending detention is a criminal procedure system to protect human rights,which matches the development model of the current legal environment and the requirements of the concept of human rights protection.The mode and mechanism of the current legal relief system for pending detention not only embodies the development of a country's legal environment,but also embodies the advancement of the concept of human rights protection.The author regards the pending detention relief system as a research topic,according to the basic situation reflected in its system and normative mandatory provisions,and combines the beneficial experience of the pending detention relief system in the two legal system countries,puts forward his own views and pertinent suggestions for improvement.The first part of this paper expounds the concept and classification of pending detention,explains the meaning of pending detention,and further clarifies the connotation and characteristics of the relief system of pending detention.Starting with the definition of different concepts,the concept of pending detention relief is finally defined as an effective way to correct or make up for the legal rights and interests of criminal suspects and defendants when they are infringed.According to the characteristics of the relief system of pending custody,this paper expounds its connotation from the aspects of legality,the universality of the subject of relief right and the diversity of relief ways.Finally,it derives the value of human rights protection,due process value,power balance value and the value of safeguarding the authority of the Constitution to safeguard human rights as the most basic.The second part of this article starts with the relief system of the main foreign countries under the rule of law,and analyses the current situation of the relief system of pending detention in the two legal systems.Among them,common law countries adopt "writ doctrine" and civil law countries adopt judicial review system of detention.Through the analysis of the common ground of the relief system of pending detention in the two legal system countries,this paper puts forward corresponding suggestions to improve the relief system of pending detention in our country.The third part of this article introduces the current situation of the pending detention relief system in China from three aspects: the subject,procedure and duration of the pending detention relief right.The existing problems are reflected from the current situation of the provisions of the pending detention relief system in China.Specifically,the lack of neutrality of the procuratorial organs,the imperfect application of alternative measures of detention,the unclear stipulation of the duration of relief for pending detention and the procedure of relief for pending detention,etc.,lead to the abuse of detention right and the appearance of "custody normalization" at the present stage in our country.The author further extends the form of the rule of law society under the guidance of our traditional culture and ideas,the immaturity and imperfection of the legislative provisions on the right to relief and the concept of human rights protection,and points out the fundamental obstacles to the improvement of the relief system of pending detention in our country.Chapter IV of this paper puts forward corresponding suggestions on the improvement of the problems existing in the relief system of pending detention in China.It is proposed that the right of detention decision of procuratorial organs and the right of examination of detention necessity should be entrusted to the courts at the present stage,and its implementation can achieve the neutral effect of the subject of detention relief right;the application of alternative compulsory measures in detention should be improved,so that the pending detention relief system has another institutional guarantee and the continuous application of detention measures can be reduced;the duration of pending detention relief should be clearly defined and the duration of detention relief should be On the other hand,we should effectively control the right of detention,improve the way of relief for pending detention,enrich the relief system for pending detention at the present stage according to the actual situation and legal environment of our country.