On The Perfection Of The Necessity Examination System Of Detention After Arrest

Arrest and detention are both adverse deprivation of the right to personal freedom of the person being prosecuted.In China,the term of custody after arrest is the same as the term of handling a case,and the state of custody itself is not independent,but an inevitable state and natural result of the exercise of the right of arrest.In order to prevent the excessive pre-trial unnecessary detention rate and the phenomenon of incorrect continuous arrest,the necessity examination system of post-arrest detention was established.The system was formally established in the criminal procedure law amended in 2012,a major reform to strengthen the supervision of procuratorial organs.Respecting and protecting human rights is its most profound theoretical support.The principle of proportion and the theory of power balance are also the theoretical basis for the establishment of the system.Despite the establishment of the review system in China,the universalization of pretrial detention has not been well solved and there are still some problems in its application.First,the review process is difficult to start.The initiation of this procedure,whether according to the authority or according to the application are lack of enthusiasm;The disclosure of the prosecution is not in place,and the degree of involvement of lawyers is low;Secondly,the review process is not standardized and specific enough.There is no unified examination standard for the necessity of continuing detention,the unclear definition of social danger increases the difficulty of the examination,and the over-closed examination method also weakens the persuasiveness of the examination results.Due to the lack of frequency of examination in legal norms,it leads to one-time examination in practice,which contradicts with the dynamic of detention.Thirdly,the rigidity of the effectiveness of procuratorial Suggestions is insufficient,and the acceptability of case handling organs is not high;Finally,if there is any objection to the result of the examination,the detainee has no right to review..This paper summarizes the merits of the system design in Britain and Germany,and puts forward some Suggestions to improve the censorship system in China.First,in view of the difficulty in starting,we should grasp the appropriate starting point,improve the supporting mechanism of assessment and accountability,fully inform the right,and at the same time enrich the application channels to increase the number of cases started;The second is to refine the relevant provisions of the examination process,including the unification of judgment standards,the expansion of the scope of application of the hearing examination,the establishment of a regular review mechanism,etc.Third,increase adoption rates by improving the persuasiveness of procuratorial Suggestions,strengthening the communication with case handling organs,and publicizing procuratorial affairs.Fourth,broaden the relief channels for reconsideration and review.