Study On The Issue Of Non-custodial Criminal Compulsory Measures In The Review And Prosecution Stage

Criminal compulsory measures are important litigation systems that guarantee the smooth conduct of criminal proceedings.China’s compulsory measures can be divided into compulsory compulsory measures and non-custodial compulsory measures.Compulsory coercive measures include detention and arrest,while non-custod compulsory measures mainly include bail pending trial and surveillance.Non-custod compulsory measures have the characteristics of personal compulsory and custody substitution,can balance judicial efficiency and human rights protection,and are an important part of the confession and punishment system.The application of non-custod compulsory measures follows the “statutory principle” and the“priority principle”.The statutory principle refers to the content statutory and procedural statutory,and the priority principle refers to the type of coercive measures that non-custod compulsory measures should be applied first.The legitimacy of applying non-custod compulsory measures is that they can maintain social order through litigation security,and the prosecuted has the obligation to endure mandatory measures;the rationality of applying non-custodial compulsory measures is that non-custodial proceedings are in accordance with the presumption of innocence The logic is that before the court conviction is guilty,it is helpful to protect human rights and to comply with the principle of proportionality.It also reduces the cost of detention and improves judicial efficiency.Judging from the legislative situation,there are hundreds of laws andregulations on non-custodial compulsory measures,including bail pending trial and surveillance,covering the applicable objects,applicable conditions,applicable time limits,enforcement and supervision,and Obtain the obligations and legal consequences of the waiting person and the monitored resident.The main legal documents include the sixth chapter of Chapter 1 of the Criminal Procedure Law of the People’s Republic of China and the Interpretation of the 2012 Supreme People’s Court on the Application of the Criminal Procedure Law of the People’s Republic of China.The fifth part of the "Law [2012] No.21),the fourth chapter of the 2012"People’s Procuratorate Criminal Procedure Rules"(High Inspection and Release[2012] No.2),and the "Public Security Organs Handling Criminal Cases Procedures in 2012" The Sixth Chapter of the Regulations(No.127 of the Ministry of Public Security)and the Provisions of the People’s Procuratorate for Handling Criminal Cases of Minors in 2013(GaoJianfaYanzi [2013] No.7)and 2007 on the implementation of procuratorial work First Opinions on Several Opinions on Criminal Judicial Policy of Tempering Justice with Mercy(GaoJianFa Yan Zi [2007]No.2)and 2000 Provisions on Relevant Issues Concerning the Application of Criminal Coercive Measures(High Inspection Association [2000] No.2)Part,as well as other relevant regulations,interpretations and regulations.The legislative orientation of bail pending trial is the judicial power guarantee measure with weaker enforcement;the legislative orientation of surveillance residence is an alternative measure for detention and bail pending trial;the legislative orientation of censorship necessity review is to reduce the judicial supervision system of custody.However,there are a number of issues with the application of non-custodial proceedings in the review of prosecution.First of all,the use of surveillance residence is extremely low,the problem of disguised detention is still serious,and day-trip phenomenon exists.Secondly,there are often contradictions between the procedures for obtaining the guarantor pending trial and the practice.The connection between the practice and the data system is not uniform;the risk of obstruction of proceedings and recommitting is high;the public crises happen occasionally;part of cases lead to judicial waste.Finally,The censorship necessity review process is complicated and time-consuming,the legal provisions are not compatible with thepractice,institutional restructuring also makes a difference.The reasons can be discussed from the level of legal concept,legal system and practical operation level.First,we will strike hard and protect lightly on the concept of law.Second,at the level of the legal system,it is a heavy function and a light link.Third,at the operational level,there are reasons for monitoring residency,bail pending trial,and custody necessity review.The biggest reason for monitoring residential problems is that monitoring the cost of residential control is very high,and the benefits of monitoring the residence are small.The reason for the bail pending trial is that the guarantee is single and the regulatory system is imperfect.The problem with the necessity of custody is the existence of liability risks and the review recommendations are not legally enforceable.From the experience of foreign countries,the application of non-custodial proceedings in the review and prosecution stage requires two efforts.On the one hand,it is to improve non-custodial compulsory measures,reduce the risk of liability such as escape and serial supply,and increase the applicability rate of monitoring residence and reporting.On the other hand,it is to strengthen the review of the necessity of custody,establish a non-custodial litigation system,and adhere to the proportional and variability of non-custodial compulsory measures.In terms of improvement of non-custodial compulsory measures,the monitoring and living system should refine the applicable conditions and clarify the execution location;the bail pending trial should increase the guarantee mode of bail pending trial,establish a pre-trial risk assessment mechanism for bail,and construct a social common monitoring mechanism.In terms of censorship necessity review,first of all,we should learn from the German experience to convert the censorship necessity review into the judicial power,and give the enforcement of compulsory measures opinions with legal force.Secondly,it is necessary to construct a non-custodial litigation system,and explore the establishment of supporting measures such as mediation pre-empty case and case information sharing mechanism.