Legitimizing The Procedure Of Pretrial Detention

There is not much difference between China's conditions of arrest and the requirements of international standards in criminal justice. But why the rate of arrest is till high? Why the improper arrest is still common? The main reason may be attributed to China's improper setting of arrest procedures. The Administrative Examination and Approval Mode in the decision-making process of arrest lead to the bad situation that prosecution authorities are unable to examine whether they comply with the conditions and necessity of the arrest. The useless of the relief procedure of arrest, the lack of an independent system of detention period, the administrative patterns of the recalculation of the period of detention lead to the difficult of letting people free after arrest. This situation will inevitably lead to a high rate of detention and long period of detention. Thus, it is of high practical significance to evaluate the following phenomenon: the ways to justify the process of arrest, to reduce the rate of detention, to shorten the duration of detention and to protect the legitimate rights and interests of criminal suspects.In addition to this introductory section, there are three parts in this paper. This article will divide the arrest procedure into four subroutines and focus on the justification of examination and approval or the procedure to make the arrest decision.The first part will explore the standard of the justification of arrest procedure. There are three standards about the justification generally: the independence and neutrality of the decision-makers, the timeliness to decide and the participation in the proceedings. The basis of these standards is: Through the analysis of the international criminal criterion and various countries'legislation, extract the common request of those different countries regarding to the system of the arrest procedure. Thus the contents of these three standards will be concluded.The second part will elaborate China's arrest procedure. This part mainly focus on the current system of arrest procedure, through the comparison with justification standard, the problems will be obtained. These problems exist in various stages. In the stage of review arrest, the lack of neutrality and multi-stakeholder involvement are still prevalent. In the change stage of arrest procedure, there is no specified provision on the change procedure. The causes may be attributed to the concept of criminal justice in China and the few provisions of legislation on procedures for arrest, etc. The third part will concentrate on the reflection of justification of our country's arrest procedure. There are two subsections in this part. This part divides into two major parts, the first subsection will exam the justification of the procedure to make the arrest decision. The justification will work through the establishment of the judge role of prosecution and criminal suspects'right to participate and the introducing of lawyer in the Review procedure for arrest as well. It is worth to mention that the judge role of prosecution will not be established without the participation of lawyers and the suspects. Concerning the legislative level, the interrogation of criminal suspects should be enacted as an obligation of the prosecution during the procedures for examining and approving arrests. In the phase of subsection two, this paper will realize the justification by introducing more specified provisions of the change of arrest procedure. The non-justified problems which emerge during the extended procedure of arrest can be overcome by the improvement of alternative measures of detention. In addition, it is necessary to build the pattern of arrest relief and the follow-up review which is in line with China's national conditions. This paper recommends that not only criminal suspects should be given the right to apply for relief, but also the active relief module should be built on the ground of"power contracts power". At the same time, this paper suggests that relevant provisions about the reviewing of the case should be clearly enacted.