Research On Designated Residential Surveillance

In 2012,Criminal Procedure Law conducted legislative reconstruction of the system of designated residential surveillance,which covered the applicable conditions,applicable objects,surveillance methods,legal consequences and other basic contents of the system(In 2018,one of the applicable objects,"particularly serious bribery crime",has been deleted).Since then,as an alternative measure to arrest,designated residential surveillance has been presented in a new system of criminal coercive measures in China.Legislators hope to reduce detention by reconstructing the system of designated residential surveillance.However,the author finds that the legal basis for applying the system is not clear,the phenomenon of arbitrary execution is very prominent,and the tendency of detention has not been fundamentally changed.It is not only for that the legal provisions are too principled and poorly operated,but also for that the system design is not reasonable.In order to regulate the application of the system of designated residential surveillance,this paper,on the premise of analyzing the legal text of the system,puts forward the viewpoints of " judicialization of decision procedure" and "legalization of execution procedure" with emphasis on the decision procedure and execution procedure of the system,and on this basis,puts forward specific reform and improvement suggestions on the basic content of the decision procedure and execution procedure of the system of designated residential surveillance,including: centralized setting of designated residential surveillance,further clarifying the surveillance mode,clarifying the jurisdiction space of the accused,increasing the guarantee obligation of the accused,reforming the way of imposing additional obligations on the accused and constructing the system of designated residential surveillance.The full text is divided into six chapters:The first chapter is an overview of the system of designated residential surveillance.The author explains and analyzes the system of designated residential surveillance from the perspectives of its historical evolution,disputes over retention and abolition,and legal attributes.In the course of examining the historical evolution of the system,the author compares the provisions of the Criminal Procedure Law in different periods in China and points out the limitations and deficiencies of legislation.The author makes a detailed analysis of the main point of view in the debate over the retention and abolition of the system of designated residential surveillance,and shows the position of supporting the "retention theory".When positioning the legal attributes of the system,the author analyzes the legal attributes of the system from the perspectives of legislative intent,decision and supervision procedure design,and relevant obligations attached to the accused,and believes that the legal attributes of designated residential surveillance is a non-custodial coercive measure.The second chapter is a comparative study of the extraterritorial related systems.The author sorts out the relevant systems of the main countries in the two legal systems,and makes a detailed investigation into the applicable conditions,decision procedures,additional obligation conditions,enforcement methods and the connection and differences between those systems and the system of designated residential surveillance in China.It is found that the system of coercive measures involves not only the system design itself,but also the deep-level litigation concept,guiding principles,litigation structure,right allocation and procedural provisions.The third chapter is the basic theory of the system of designated residential surveillance.This chapter makes a thorough analysis and explanation of the legitimacy,function and applicable principle of the system of designated residential surveillance,providing theoretical support for an accurate understanding of the system’s characteristics,legal attributes and the correct application of the coercive measures.The fourth chapter analyzes the legal text of the system of designated residential surveillance.The system design of designated residential surveillance is relatively general and lacks clarity in the provisions of the Criminal Procedure Law,while the relevant judicial interpretations and regulations are not satisfactory.In order to regulate the application of designated residential surveillance,it is necessary to analyze the legal text of the system,including explaining the meaning of the basic contents such as the applicable conditions,the place and method of execution,the limits of personal freedom of the accused,and the protection of human rights,so as to clarify the applicable boundary and eliminate the confusion of law enforcement.The fifth chapter is an empirical study of the current application of the system of designated residential surveillance in China.The author investigates the general situation of the public security organs in eight cities and counties of the six provinces in the eastern coastal area,central area,western area and north-eastern area in the form of questionnaires and interviews,focusing on the character of the case,the setting of the designated residence,the choice of surveillance methods,the situation of executive officers,the protection of the human rights of the accused,and the transfer from designated residential surveillance to arrest.It is found that they have misunderstood the relationship between designated residential surveillance and arrest.The execution place is not standardized and there is a great safety risk.The choice of surveillance mode is unreasonable,leading to disguised detention.There is a phenomenon of evading laws and regulations,and the alienation of designated residential surveillance as a means to break through the case.The reason for the above problems lies in the lack of clarity in the legal provisions,and the principle of procedural legality has not been effectively implemented in the applicable procedures of the system.The sixth chapter is about the reform and improvement of the system of designated residential surveillance.Closely focusing on the reasons that lead to the difficulties in the practice of the system of designated residential surveillance,on the basis of a clear guiding concept of reform and improvement,the author puts forward the reform proposals of "judicialization of the decision procedure" and "legalization of the execution procedure" for the system of designated residential surveillance,centralizing the setting of designated residential quarters,further clarifying the surveillance mode,increasing the guarantee obligation of the accused,reforming the way of attaching obligations to the accused,and constructing a social support system for the system of designated residential surveillance.