On Judicial Control Of Pretrial Detention In China

Pretrial detention is the state that the personal liberty of a suspect or the accused is deprived of before an effective judgment is made. As a kind of compulsory measure, pretrial detention, which many countries have stipulated, prevents a suspect from escaping, forging or destroying evidence, retaliating against witness or committing crime again, in order to guarantee the process of criminal procedure. Meanwhile, many countries, based on the fundamental principle of the limitation of state power and the legitimacy of its operation, and the value that the right and freedom of a citizen should not be violated, put the emphases of the pretrial detention on the prevention of power abuse and the guarantee against personal liberty, making the strict regulations of both substantive conditions and judicial procedure of the detention, judicial control as the core. Chinese criminal procedure law also stipulates these two aspects of compulsory measure with regard to the detention and arrestment, according with the requirement of the principle of the rule by law. However, the people's courts don't participate in the pretrial procedure. Consequently, the absence of judicial review mechanism and some other causes lead to the detective detention system, giving rise to the phenomenon of abusing arrest, wrong arrest and undue extended custody in practice. Therefore, it is necessary to establish the judicial review mechanism of pretrial detention and optimize the pretrial detention system, which attach great importance to promoting judicial reform and realizing judicial justice. Thus, this essay analyzes the current situation of the judicial control of pretrial detention in our country and elaborates the rationality and necessity of carrying out this system, and further, using the practice of western countries and the requirement of the Covenant on Civil and Political Rights for reference, then considering the practice of China, this essay also gives some advices on the system reconstruction of pretrial detention in China.