| In view of the frequent occurrence of improper detention in China’s judicial practice and the vulnerable infringement of the personal rights of detainees,China formally established the review system of the necessity of custody in 2012,which further enhanced the supervision responsibilities of the procuratorate and fully demonstrated China’s emphasis on the protection of human rights.Since the establishment of the review system of the necessity of custody,to a certain extent,it can realize the weakening and separation of the relationship between arrest and custody,alleviate the situation that custody is highly dependent on arrest,and achieve good results in protecting the personal rights of detainees.However,there are also a series of problems in carrying out the review activities.The review system of the necessity of custody has not played its due role,the relatively high rate of custody in China,and the detainees’ personal rights are often infringed have not been completely solved.The key content of this article is to consider how to clarify the problems encountered in the operation of the review system of the necessity of custody,and put forward corresponding solutions to promote the in-depth implementation of the review system of the necessity of custody.This article is divided into four parts:The first part introduces the necessity of custody review system in line with the theory of human rights protection,the theory of presumption of innocence and other theoretical requirements,as well as the functional value of carrying out the review activities,put forward when taking custody measures should abide by the principle of proportionality.The subject of the review should comply with the principle of neutrality and carry out the review activities continuously under the guidance of the principle of continuity,so as to provide a theoretical basis for the subsequent research.The second part analyzes the deficiencies of the subject of review,review standard and relief approach exposed in legislation during the system operation.In the actual operation,there are some problems,such as the lack of motive power,the lack of execution of procuratorial suggestions,and the imperfection of alternative measures of custody.The third part introduces the relevant provisions on the review system of the necessity of custody in different legal systems.This paper makes a comparative analysis from the aspects of examination subject,examination way and relief channel,so as to provide ideas for perfecting the examination system of the necessity of custody in China.The fourth part combined with the specific national conditions of our country,aiming at the problems exposed in the system operation,put forward the corresponding solutions.It is suggested that we should construct a more neutral subject of review in legislation,further improve the review standard and relief channels,improve the review motivation of examiners and the execution of procuratorial suggestions in judicial practice,and improve the way of hearing review.It also proposes that we should make full use of modern advanced technical conditions to provide technical support for taking non-custody measures,and take various ways to give full play to the function of custody substitute measures to ensure the smooth progress of criminal proceedings. |
