| Custody is a compulsory measure to restrict personal freedom for a long time.The compulsory measures of custody and arrestment in the criminal procedure law of our country,as well as the measures of detention and investigation in the supervision law,should in essence belong to the category of custody.The examination of the custody necessity should include both the prior examination of custody and the post examination of custody.The examination system of custody necessity established in Article 93 of the Criminal procedure Law in 2012 is limited to the arrested criminal suspect and defendant,so it belongs to the post examination of custody,which is also known as the review of the post-arrest custody necessity.In the criminal procedure law of our country,custody is not a strict criminal coercive measure,but on accompanying state of criminal detention and arrestment.From the point of view of human rights protection,criminal detention and arrest coercive measures,as well as detention investigation measures,should all be examined by the custody necessity.Since the examination system of the custody necessity established,it has been refined one after another by the rules of Criminal Procedure of the People’s Procuratorate in 2012(trial)and the provisions of the people’s Procuratorate in handling the examination of the necessity of custody(trial).After that,there has been no further amendment to the Criminal Procedure Law,until 2018.The system positioning is not clear,the neutrality of the review subject is not strong,the review power is insufficient,the review mode is still administrative and other problems have not been solved.So,the effect of the review is still not very obvious,and the operation of the system still needs to be wholly reformed and improved.To improve the examination system of the necessity of custody,we should break the current definition to expand and perfect it.Reform the existing coercive measures,change it into arrestment in line with international standards,and greatly shorten the legal period of detention,change the existing arrestment into custody,and establish independent custody procedures.Combined with the nature of the procuratorial organs in the Constitution,the internal organs of the procuratorial organs are generally divided into two branches.So all the functions of the examination of the necessity of custody in a broad sense are entrusted to the legal supervision institutions to perform,so as to realize the transition from the temporary quasi-judicial review to the future one,in order to control the procedure of the review of the necessity of custody.Have a reformation on the examination of the custody necessity in a proper way,especially about equal confrontation between prosecution and defense.Establish a regular examination system as well as recheck system to promote active examination based on function.The custody facility should be provided with a full-time custody review officer.In this way,the real-time tracking and assistance of custody examination and custody application can be strengthen.An independent system of outstanding custody duration should be established,which is different from the time limit for handling cases.The hard index of custody should be improved and the rate of custody should be reduced. |
