Research On Review System About Detention Necessity After Arrest

The unusually high detention rate is a prominent problem in China’s criminal justice field,which violates the current international norms of "human rights protection".The key to solve this problem is not only to strictly review the necessity of arrest,but to continuously review of detention necessity after arrest.When the Criminal Procedure Law of the People’s Republic of China was amended in 2012,the review system about detention necessity after arrest was established.Soon after,"Criminal Procedure Rules of People’s Procuratorate ","’ Provisions on the Review of Necessary Detention Cases of People’s Procuratorate(Trial)" and "Guiding Opinions on Implementing the Provisions on the Review of Necessary Detention Cases of People’s Procuratorate(Trial)" were published.The purpose is to conduct a continuous review of the detention process,and release the detainees in time or change them into other compulsory measures if they are not required to continue custody,so as to solve the problem of high detention rate in China.However,the system still has some problems in the process of practical application.Therefore,how to improve the review system about detention necessity after arrest is still an urgent issue for consideration.By sorting out the concepts related to the review system about detention necessity after arrest,this paper clarifies the basic principles followed by this system as well as the functional value it plays,which are the theoretical basis for the improvement suggestions proposed in the following paper.Then,the system is examined from legislative norms and judicial practice.Some deficiencies were found in the existing system.First,the supervision mode of self-examination is not scientific.Second,the time of starting the first trial according to the authority is unclear.Third,the responsibility of proof and the standard of proof are absent.Fourth,the review suggestion without the necessity of custody is lack of restraint.Fifth,the detainee has no remedy to the examination result.At the same time,there are also the following deficiencies in the supporting mechanism.First,he lack of control force of non-custody coercive measures.Second,the difficulty of effective participation of lawyers.Third,the irrationality of relevant work assessment mechanism.According to the enlightenment from the investigation of the similar system between the civil law system and the common law system,this paper puts forward some suggestions for improvement based on the current situation in China.There are the following measures to improve the legislative norms.First,the reviewer should revert to the criminal enforcement procuratorial department.Second,the time limit for review based on duties should be determine.Third,the responsibilities and standards of certification should be clarified.Fourth,the restrictiveness of the non-detention necessity review recommendations shloud be improved.Fifth,the re-examination mechanism of the review system about detention necessity after arrest should be established.With regard to supporting mechanisms,it is necessary to strengthen the control force of non-custody coercive measures.The participation of defense lawyers should be increased.The reasonable work assessment mechanism should be established.