| Suspensive detention is the custody and apprehension of the suspect by the police and People’sProcuratorate before adjudication, as well as the deprivation of the defendant’s personal freedom by thecourts before issuing any effective sentencing. The system of suspensive detention is a very importantcomponent of the criminal justice system of our country, and the level of actual practice of suspensivedetention represents the level of guarantee of the rights of citizens in our criminal ligations, as well as theindication of development for the construction of a law-based Chinese society.The laws of our country does not outline specific regulations for suspensive detention, and thereforethe detention is not a coercive criminal measure based on laws with clear legal status. The so-calleddetention is an inevitable result of the custody and apprehension of the criminal suspect and defendant. Asthe most severe criminal coercive measure, detention is like a double-edged sword that, if usedinappropriately in fighting crimes, could easily infringe upon the personal rights of the detainees. In justicepractice, there are too many examples of the detention of innocents or inappropriate detentions. Therefore,in order to achieve the dual purposes of fighting crimes and protecting personal rights, we have an urgenttask of establishing a consummate detention system and a rights-protection system during criminallitigations, which is a necessary requirements of maintaining a stable and harmonious society.After the amendment of the criminal litigation laws in1996, the criminal coercive measures of ourcountry have experienced significant changes, mainly in the aspects of applicable conditions and timelimits of criminal detentions. Furthermore, the conditions of apprehension have also been amended to bemore practicable. Just by looking at the legal wordings, we could say that the criminal coercive measures of our country have advanced a big step; however, in practice, there have been overuse of criminaldetention measures by the justice agencies, as well as persistent occurrence of malignant events indetention centers, indicating that the personal rights of the detainees could not be effectively ensured.These phenomena could be due to the lack of necessary justice reviews in suspensive detentions, the lackof neutrality in detention facilities, and the lack of adequate protection for the personal rights of criminalsuspects at the present stage.Faced with these problems in the justice practice, new amendments to the criminal litigation lawshave been drafted for the aspects of criminal investigation measures, criminal coersive measures, and theadvance interventions of lawyers. This draft have been submitted to the People’s Congress for review onMarch8,2012and subsequently approved with high votes by the Fifth Conference of the11th People’sCongress of the People’s Republic of China on March14,2012. The addition and modifications made bythe amendments are highly significant to criminal litigation laws. For the first time, the amended draft put“respecting and protecting human rights” into the general guidelines and established surveillant residenceas a substitute measure for detention. Furthermore, the draft endowed lawyers as defenders duringinvestigational stages and consummated procedures for lawyer meetings and document reviews. Thisdemonstrated our government’s resolution in protecting human rights while fighting and punishing crimes.This paper gives a deep and systematic analysis for the suspensive detention system. Aftersummarizing the concepts, meaning, properties, and implications of suspensive detention, an investigativeanalysis is given about the suspensive detention systems of mainland China and that of the EnglishCommon Law. Based on the present situation of the suspensive detention of our country, problems aboutthe present system are outlined and suggestions for improvement are given.The first part is the summary of the suspensive detention system. First, the concepts of suspensive detentions are discussed, and then the coercion, exceptions, preventions, punishments, and limitations ofsuspensive detentions are analyzed. Lastly, the significance of suspensive detention in the entire criminallitigation process is clarified, such as mentioning the important functions of suspensive detention system inmaintaining the proper order for the litigation process, as well as in preventing public danger andmaintaining public order.The second part is an investigation about foreign suspensive detention systems. The justicial control,applicable conditions, detention facilities, and judicial remedy of the suspensive detention systems inmainland China and English Common Law are compared.The third part discusses the present situation and problems of our suspensive detention system. Bylooking at the present situation and the amendments just passed by the People’s Congress in litigation laws,problems in judicial control, detention facilities, and the protection of detainee’s rights are raised for thepresent stage.The fourth part is some thoughts about perfecting the suspensive detention system of our country.Specifically, this includes changing the present thinking, issuing suspensive detention orders in anappropriate manner, perfecting the substitution measures of detention, establishing neutral detentionfacilities, strengthening the protection of detainee’s rights, and offering detainees better legal support, etc. |
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