| The approval and bringing into effect of International Covenant on Civil and Political Right (hereinafter referred to as the"ICCPR") by Chinese government is the issue on schedule. ICCPR provides the liabilities to protect the dignity of human person, the equality and the human rights by the State government, which includes quite a lot of the issues with respect to the criminal procedural law. There is"mutual-movement"between the modification of Criminal Procedural Law and ratification of ICCPR. ICCPR provides fundamentally the rights of detainee, and the protection of the suspect or the accused bases on the ground of the principles of Innocent Presumption, Judicial Review and Proportion, prohibition of arbitrary deprivation of anyone's right of liberty. The spirit of the ICCPR gives inspiration to Chinese legislation and judicial practice. No provision on pretrial custody system is in applicable PRC law. The pretrial custody system is contingent on such crime control as investigation and prosecution. Under the influence of the leading ideology"more punishing, less protecting", and due to the lack of restriction provided by the law, the government power on the measure of pretrial custody usually has been abused. Phenomena such as abuse of custody, inquisition by torture and violation the limitation of custody emerges endlessly. On the other hand, the due rights of detainees are unavailable, and the suspects with the status as principle part has turned to the"tool"of the fulfillment of the crime control by the government. The objective of pretrial custody system goes far away from its original will in judicial practice. Now it purely becomes into a means to punish criminal.This paper, written on the time of the approval and implement of the ICCPR by China, gives an introduction of the content of ICCPR and its notion of human right embodied therein, on the guidance of the principle of rule by law, Judicial Review, Proportion, Innocent Presumption, and the protection of human-rights and complying with the notion of the ICCPR, we have a intent to find a mode fitting for China of pretrial custody to improve Chinese pretrial custody system with reference to the legislations and practice of the advanced foreign countries ruled by law. In order to finding a proper method to solve the problem currently, the paper conducts a analysis in deep on current custody system, and states that the current custody system in China is a close power system which is within administrative field without supervision, and it has the inborn defect of the abuse/expansion of power and the lack of civil rights, thus, the paper puts forward that the principle of using power to restrict power, using right to resist power, and we should review the pretrial custody system and its objective, making it with the ultimate objective of guaranteeing the smooth progress of the criminal litigation and protecting the suspects' rights instead of misunderstanding the meaning of such the attributes of the said system as punitive, or"instrumental"purpose. At last the paper points out that how to restructure China's pretrial custody system by the improvement as following aspects: the objective and principles, rights of detainee, determinative procedure, alternative measures, term limitation, location and remedy. |
