Establishing Pretrial Detention As One Judicial Remedy Method In China On The Respect Of The Writ Of Habeas Corpus

Pretrial detention is widely used in national criminal proceedings as a coercive measure, with functions of restricting crime and protecting the smooth criminal proceedings. It cannot be denied that the pretrial detention has been the very important part in criminal coercive measure system of China, although it does not be formulated in Criminal Proceedings Law of People's Republic State of China. With economic development, civilization progress and revolution in the conception of criminal proceeding, the protection of human rights has become the primary objective of criminal proceeding reforms. Criminal procedure reforms in the world are also guided by the ideology of human rights protection, and the pretrial detention has been established as a special relief system of the Justice. In the system of pretrial detention of China there are not any effective remedies for detainees by law as well as that in practice, which make the reform necessity and important.The structure arrangement of this paper is as follows:In the first chapter, it describes the presenting conditions of pretrial detention and the problems. This chapter consists of four sections, each introducing a major problem in the current, which are high applicable rate of pretrial detention, the more and more serious application of the extended detention, failed protection for the right of the detainee's counsel, right of health and other physical Rights. In another word, this paper attempts to introduce the core objective --- for the detainees to find an effective remedy for pretrial detention.The Chapter II, is concerned with international comparative reviews of pre-trial detention as the judicial relief. From the research from the pre-trial detention relief mechanism of countries ruled by law around the world, we reach a basic conclusion: the judicial right to restrict detain is a practical way. To completely solve the various pre-trial detention problems, it is essential to entitle the detainee to raise the lawsuit and to let the court review the legality of the detention as the neutral, in which way to break closed and purely administrative mechanism of the pre-trial detention in the current. This chapter selects and analyzes typical legislations of the writ of habeas corpus from common law and civil law in order to provide useful experience to build this system in China.The Chapter III, is the signification of the reconstruction of the writ of habeas corpus. As Pro. Jiang Ping understands that, the introduction of a legal system should be focused on the feasibility and necessity of the system. Therefore, in this chapter the five perspectives of the signification of the writ of habeas corpus reconstruction are discussed in detail, including the positive response of "putting human rights into the Constitution", the necessary requirement of international standards of criminal justice, legalization of the criminal proceeding, the solution of the problems in pretrial detain and realization of the principle of economic litigation.In Chapter IV, the reconstruction of the writ of habeas corpus in China is discussed. Logically, the institution establishment in detail follows the necessity of the introduction. The paper introduces reconstruction steps of the institution, also interpreted as "three-step strategy ": at the first step, in our Law of Constitution further provisions on Right to relief are added to improve the system on personal liberty; at the second step, in the revised " Criminal Procedure Law, " detailed provisions of the writ of habeas corpus are formulated and specified the content of the institution; at the third step, based on the foresaid two work, a single"Law of Protection of Human"shall be formulated. Of course, the focus of this chapter is how to set up the institution in"Criminal Proceeding Law".