The Legislative Flaws And Perfection Of Pre-trial Detention System In China

This thesis starts with the injustices in lawsuits in recent years as the entry point, and attempts to tackle the embedded reasons. Due to the institutional flaws, that there is no pre-trial detention system in China, detention is attached to arrest and custody, which will inevitably lead to detention. Under the mode of official principle of "entity outweighs procedures" in China, some judicial officers illegally torture suspects and defendants or extend their detention, in order to achieve the final aim to fight the crime. This makes the situation even worse, with grave social influences, and seriously damages the impartiality and authority of judiciary.Thus, in order to solve the problem once and for all, we have to make up the flaws in pre-trial detention system as soon as possible. To better the system, this thesis will analysis the aspects and proposes some suggestions as follows:In the first part, I will have a recapitulation of pre-trial detention system in China. Firstly I will address the necessity of studying the detention system from the actual situation. Then I will introduce its meaning, and characteristics, including inequality, coerciveness and duality. Finally I conclude with the aim and significance of pre-trial system in criminal procedure, in the hope of building a better system, in which differentiates custody and arrest, thus more effectively control detention.In the second part, I will compare the design of pre-trial detention system between China and foreign countries. By introducing the different designs in a few countries under the rule of law and their advanced ideas of rule of law, I try to investigate their rules of review procedure, applicable conditions, time limit, and remedy system etc. which could be used as models of improvement.In the third part, I focus on the flaws and short comings of pre-trial detention system in China at present. Due to the lack of separated and worded rulings of pre-trial detention system, there emerges a lot of hidden problems:1) with no difference between detention and arrest and custody, together with the confusion of their meanings, result the rate of detention abnormally high, and running contrast to mainstream ideas of rule of law in the world; 2) the independence of locale for detention, with which attached to the police system and renders the suspects and defendants in disadvantage to defend their legal rights, and further more makes illegal interrogation very easily; 3) the inappropriate design institutionally renders the extension of detention out of control and deeply tainted by administrational power; 4) when suspects and defendants are no longer required for custody due to various reasons, there is no guarantee of compensation system, and the right to receive compensation becomes an empty right.In the fourth part, accordingly I propose some ideas to better our pre-trial detention system, with the references of international justice standards and some modern countries under the rule of law:1) to build an independent detention system and change the situation of the confusion between detention and arrest and custody, and enables the decision of detention according to law and under review of judiciary; 2) to separate the locale of detention from police system, and prevent the investigating agency from using detention as a way of detective, thus to ensure its independent position as a third party; 3) to improve the approval procedures of extension of detention and strengthen judicial examination, thus to increase its openness and fairness; 4) to regulate the system of compensation to suspects and defendants and assign it to specific parties to implementation, thus to ensure their personal rights and procedural rights, and prevent the situation of empty rights.