| Although custody has a practical role in ensuring the smooth litigation and stabilizing social harmony,it is also the most serious violation of citizen’s basic personal freedom.In 2004,the state respects and protects human rights was written into the Constitution.The 2012 Criminal Procedure Law listed respecting and protecting human rights as an important task of the Criminal Procedure Law,which is a direct implementation for the spirit of China’s Constitution.Therefore,the necessity examination system for custody has came into being,which reflects the country’s emphasis on human rights protection and has important legal significance for changing the traditional concept of handling cases and law enforcement.It was a great progress in the reform of the rule of law in China.From the legislative level,it shown that our country determines to solve the stubborn diseases more thoroughly,such as the extended detention and the detention to the end,and it also shown that China is closely following the trend of the world.The necessity examination system for custody clearly lists that the review subject is the procuratorial organ and the specific responsible department has undergone phased changes.The procuratorial organ could take the initiative to examine the necessity of custody according to its functions and powers.The suspect,the defendant and their legal representatives,close relatives or defenders could also apply for the examination of the necessity of custody.For a long time,it has mainly adopted written review,which is difficult to organize public to review normally.Although the review system has been established in China,the problem of the generalization of pretrial detention has not been solved well.There are still some problems in its application.If this issue can’t be solved well,it will affect the original legislative intention of this system inevitably.For the sake of assisting the further development of this system,the paper combs the relevant elements of the necessity examination system for custody,clarifies the theoretical basis of this system,and puts forward corresponding suggestions on how to improve the necessity examination system for custody in China.This paper is divided into four parts:The first part is the overview of the system.It sorts out the research on relevant systems at home and abroad,by explaining the concepts of detention and post-arrest detention necessity review,the post-arrest detention necessity review is the natural choice of procedural justice was concluded.From the fact that detention is a consequence of arrest,the weakening of the tendency of post-arrest detention necessity review to centralize detention,the determination of the subject of review depends on the national conditions and judicial status of each country,and the change of compulsory detention measures is not necessarily related to the sentencing of substantive sentences,the review of the necessity of post-arrest detention is the proper meaning of safeguarding procedural justice was is concluded.The second part is the analysis of existing circumstance.Combined with relevant data and cases in legal norms and practice to analyze the current situation in depth.First,the analysis of the elements of the review system for the necessity of post-arrest detention,which is mainly explained from the review basis,review subject,review start,review content,review methods and other aspects.Secondly,the judicial practice on the necessity examination system of the custody after arrestment,which was mainly explained from the aspects of low review rate,high detention rate,still showing the situation of arrest when the crime is constructed,uneven distribution of the review initiation period,the misdemeanor changes are common,and different adoption of changing recommendations.The third part is about the problems and their causes.Due to the habitual thinking,the imperfect assessment mechanism and the lack of coordination at the legislative and judicial levels,the following problems such as the broad review standards,the lack of litigation in review procedures,the lack of relief procedures,and the poor use of alternative detention measures in the era of misdemeanors were caused.The last part is the perfect conception of the necessity examination system for custody after arrestment.In view of the existing problems,suggestions are put forward from following three aspects.The improvement of legislation mainly includes improving the content and review standards for the necessity of detention,and establishing system for rights remedies and periodic reviews;the judicial trend to refined mainly includes that judicial subjects should change their thinking and concepts,change from quasi-judicial review to judicial review,and strive to build a work pattern of information symmetry and cooperation;the supporting facilities tend to mature mainly includes the combination of alternative detention measures and effective follow-up supervision measures,and the establishment of a scientific incentive and assessment system. |
